Opinion
Civil Action No. 03-1906 Section "R" (5).
October 20, 2004
ORDER AND REASONS
Defendant Callon moves the Court for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiffs Nikola Vekic and Van Robin, but not Gulf Quality, Inc., oppose Callon's motion for summary judgment. Callon also moves to strike plaintiffs' expert report and expert designation, and to extend Callon's expert report deadline and continue the trial date. For the following reasons, the Court GRANTS Callon's motion to strike, GRANTS Callon's motion for summary judgment, and DENIES Callon's other motions as moot.
I. FACTS AND PROCEDURAL BACKGROUND
On June 4, 2003, plaintiffs Nikola P. Vekic, Van Robin and Gulf Quality, Inc. filed suit against Wood Energy Corporation and Callon Offshore Production, Inc. in Louisiana state court. Plaintiffs alleged that, beginning in June, 2002, defendants engaged in "plugging and abandonment" of Wood Energy's petroleum wells. (Pl.'s Compl. at ¶ 7). Plaintiffs alleged that defendants' negligent dredging and spoil bank rebuilding produced excess sedimentation that caused extensive damage to plaintiffs' oyster leases, which are located in and around the area where the plugging and abandonment work occurred. ( Id. at ¶¶ 4-10). Plaintiffs asserted that because defendants negligently performed the work that damaged their oyster leases, defendants should be liable for the damages plaintiffs incurred, including destruction of oyster crops, remediation and restoration costs, and past and future loss of income.
Plaintiffs alleged that the following oyster leases were damaged by defendants' conduct: Oyster Lease Nos. L-35090 and L-35604, owned by Nikola Vekic; Oyster Lease Nos. L-32822 and L-34006, owned by Van Robin; and Oyster Lease Nos. L-35102 and L-33356, owned by Oyster Fisheries, Inc. The complaint does not mention Gulf Quality, Inc., or allege that any oyster leases it owns were damaged.
On July 2, 2003, Callon removed the action to federal court, grounding federal jurisdiction on diversity of the parties under 28 U.S.C. § 1332. On March 5, 2004, plaintiffs' claim against defendant Wood Energy was dismissed for failure to prosecute. On August 27, 2004, defendant Callon moved for summary judgment, arguing that plaintiffs' failure to submit an expert report by the August 18, 2004, deadline set by the Court's scheduling order compelled the conclusion that the record contains insufficient proof of these essential elements of plaintiffs' claims: (1) whether their oyster leases were damaged, and (2) whether any alleged damage was caused by Callon.
On September 13, 2004, plaintiffs requested, and the Court granted, a brief extension of the deadlines for plaintiffs to submit an expert report and to oppose Callon's motion for summary judgment. Plaintiffs produced a "Preliminary Report" from Dr. E.W. "Ed" Cake, Jr., a Chief Science Officer at Gulf Environmental Associates, on October 4, 2004, and filed an opposition to Callon's motion for summary judgment on October 8, 2004. Both actions were timely under the Court's order. The Court now considers Callon's motion to strike plaintiffs' expert report and Callon's motion for summary judgment.
II. LEGAL STANDARD
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
III. DISCUSSION
In support of its motion for summary judgment, Callon argues that plaintiffs have failed to submit any evidence supporting their claim that their oyster leases were damaged or that any such damage was caused by Callon, both of which are essential elements of plaintiffs' claim. Callon notes that the expert report plaintiffs submitted addresses only one oyster lease owned by a single plaintiff, Nikola Vekic, and argues that plaintiffs' other claims must be dismissed because the record contains no proof that those other oyster leases were damaged. Callon also argues that the report, even as to the oyster lease it addresses, should be stricken and summary judgment granted in Callon's favor because the report does not offer a reliable opinion that any damage was caused by Callon's negligence. Plaintiffs argue that their expert report demonstrates that plaintiffs sustained significant damage to their oyster leases as a result of Callon's activity, and that the report therefore provides sufficient evidence to show that a genuine issue of material fact on those issues exists.
A. Leases Not Addressed by Plaintiffs' Expert Report
Plaintiffs' expert report addresses only one oyster lease, L-35090, which belongs to plaintiff Nikola Vekic. Other than the expert report, plaintiffs have submitted no record evidence that would indicate that the other oyster leases mentioned in the complaint were damaged. Callon argues that plaintiffs have therefore failed to raise a genuine issue of fact for trial concerning damage to any oyster leases other than L-35090. Damages is an essential element of plaintiffs' claim that Callon's negligent actions harmed their oyster leases. To withstand a motion for summary judgment, plaintiffs must submit evidence sufficient to show that a genuine issue of material fact on that issue exists. See Celotex, 477 U.S. at 324. Plaintiffs have failed to do so for all oyster leases not addressed by the report.
For the foregoing reasons, the Court grants summary judgment in Callon's favor as to all of plaintiffs' claims except plaintiff Vekic's claim for damages to Oyster Lease L-35090, which the Court addresses below.
B. Lease Addressed by Plaintiffs' Expert Report
Callon first argues that Vekic's expert report should be stricken because it does not provide an opinion about causation based on facts or any reliable data, and therefore is inadmissible under Daubert. Callon also argues that Vekic has failed to produce any other evidence that would raise a genuine issue of material fact as to whether his oyster lease was damaged and as to whether Callon's activities caused any such damages. The Court finds that the expert report does not provide a reliable opinion as to causation, and Vekic has failed to produce any other admissible evidence sufficient to withstand summary judgment on the causation issue. Thus, the Court need not address Callon's argument that Vekic has also failed to raise a genuine issue of material fact on the damages issue.
1. Motion to Strike
The same rules that govern the admissibility of expert testimony at trial govern the admissibility of expert testimony on summary judgment. First United Financial Corp. v. United States Fidelity Guaranty Co., 96 F.3d 135, 136-37 (5th Cir. 1996) (per curiam). One such rule is Federal Rule of Evidence 702, which gives the district court considerable discretion to admit or exclude expert testimony. See General Electric Co. v. Joiner, 522 U.S. 136, 138-39 (1997). Rule 702 provides that an expert witness "qualified . . . by knowledge, skill, experience, training or education," may testify when scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. For the testimony to be admissible, Rule 702 requires that (1) the testimony be based on sufficient facts or data, (2) the testimony be the product of reliable principles and methods, and (3) the witness apply the principles and methods reliably to the facts of the case. FED. R. EVID. 702.
In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court held that Rule 702 requires the district court to act as a "gatekeeper" to ensure that "any and all scientific evidence admitted is not only relevant, but reliable." 509 U.S. 579, 589 (1993). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (clarifying that Daubert gatekeeping function applies to all forms of expert testimony). The Court's gatekeeping function thus involves a two-part inquiry into reliability and relevance.
The Court must first determine whether the proffered expert testimony is reliable. The party offering the testimony bears the burden of establishing its reliability by a preponderance of the evidence. See Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998). The reliability inquiry requires the Court to assess whether the reasoning or methodology underlying the expert's testimony is valid. See Daubert, 509 U.S. at 589. The aim is to exclude expert testimony based merely on subjective belief or unsupported speculation. See id. at 590. The Court must also determine whether the expert's reasoning or methodology "fits" the facts of the case and whether it will thereby assist the trier of fact to understand the evidence, in other words, whether it is relevant. See id. at 591.
Here, Dr. Cake's report must be excluded because it does not offer a reliable opinion that any damage to Vekic's oyster lease was caused by Callon's dredging activities. Although the report offers an estimate of oyster crop losses on L-35090, and states that "[a]n estimated 10%, or 14 acres of the bottoms of lease L-35090 were adversely impacted by the oilfield activities that occurred in 2002," (Pl.'s Mem. in Opp. to Mot. Summ. J., Ex. A at 1), the report presents no rationale for linking the oyster losses to Callon's activities. The report contains no information about the frequency and nature of Callon's operations. Dr. Cake does not explain the facts or data on which he bases his conclusion that those operations were a cause in fact of the oyster losses he estimates, nor does he address or rule out any possible alternative causes of the damages. Although Dr. Cake is not required to disprove or discredit every possible alternative cause, he is required to provide a basis for his finding that Callon's activities more likely than not caused Vekic's damages. See Viterbo v. Dow Chemical Co., 826 F.2d 420, 424 (5th Cir. 1987) ("Without more than credentials and a subjective opinion, an expert's testimony that `it is so' is not admissible."). In this case, Dr. Cake has failed to show that his opinion as to causation is based on sufficient facts or data.
Indeed, while Dr. Cake concludes that the losses were caused by "an oilfield structure-removal project that involved the plugging and abandoning of four well and related maritime activities including vessel groundings and wheel-washing on, over, or adjacent to lease L-35090," the report does not mention Callon by name. ( Id. at 3).
Dr. Cake also fails to explain how his methodology demonstrates that Callon's activities are a cause in fact of Vekic's damages. Dr. Cake estimates the total oyster mortalities on L-35090 in 2002 to be 12.3 percent, and the mortality in 2003 to be 45.5 percent. But he also notes that the dredging project was underway in both years, and does not explain why the Court should assume that the entirety of the much larger mortality in 2003, much less any portion of it, is attributable to Callon's activities. The report also compares oyster mortality on L-35090 to mortality on adjacent "control leases" to determine what percentage of the losses are allegedly attributable to the dredging, but does not explain why these adjacent leases are comparable. Dr. Cake appears to have calculated a difference in oyster mortality, and then to have simply assumed that the difference was cause by dredging. "Expert testimony is not admissible when it is based merely on subjective belief or unsupported speculation." Lassiegne v. Taco Bell Corp., 202 F. Supp. 2d 512, 523 (E.D. La. 2002) (citing Daubert, 509 U.S. at 590). Dr. Cake's causation opinion, to the extent any such opinion is in fact contained in the report, does not satisfy the requirements of Rule 702. The report does not indicate that the opinion is based on sufficient facts and data or reliable principles and methods. The Court therefore finds that Dr. Cake's expert report is not admissible.
2. Motion for Summary Judgment
Callon has moved for summary judgment on Vekic's claims, arguing that, under Louisiana law, Vekic has not produced any admissible evidence that Callon's actions caused Vekic's damages. Although Vekic's complaint does not state the particular state law in which he grounds his claim for damages to his oyster lease, the Louisiana Supreme Court has held that liability for damages to oyster leases caused by activities on adjoining land is governed by LA. CIV. CODE art. 667. See Inabnet v. Exxon Corp., 93-0681 (La. 9/6/94); 642 So.2d 1243, 1250-51. In 1996, the Louisiana Legislature amended article 667 to require a showing of negligence in any claim for damages under article 667 other than those caused by "pile driving" or "blasting with explosives." LA. CIV. CODE art. 667. Vekic has not alleged that Callon engaged in pile driving or blasting with explosives. Accordingly, to withstand a motion for summary judgment, Vekic must introduce some evidence that would raise a genuine issue of material fact as to whether Callon's negligence caused any damages to Vekic's oyster lease. LA. CIV. CODE art. 667; see Brown v. Olin Chemical Corp., 231 F.3d 197, 200 (5th Cir. 2000); See Skanski Oyster Corp. v. Louisiana Land and Exploration Co., 97-1888, p. 4-5 (La.App. 4 Cir. 3/11/98); 709 So.2d 329, 331-32.
Article 667 states:
Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. An ultrahazardous activity as used in this Article is strictly limited to pile driving or blasting with explosives.
LA. CIV. CODE art. 667.
The Court has found that Vekic's expert report is inadmissible. Vekic has produced no evidence of causation other than the expert report, and has therefore failed to show that a genuine issue of material fact for trial exists on causation, an essential element of his claim for damages to L-35090. The Court grants Callon's motion for summary judgment as to this claim as well.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's motion to strike and GRANTS defendant's motion for summary judgment. The Court also DENIES defendant's other motions as moot.