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Fisher v. Dominion Transmission, Inc.

United States District Court, M.D. Pennsylvania

April 1, 2015

ALLEN S. FISHER, individually and as a trustee of the MERRILL FISHER TRUST, and LOIS M. FISHER, as a trustee of the MERRILL FISHER FAMILY TRUST, Plaintiffs,


MATTHEW W. BRANN, District Judge.

On February 10, 2012, Plaintiff Allen S. Fisher commenced this diversity action against Defendant Dominion Transmission, Inc. in the Court of Common Pleas of Centre County. On March 16, 2012, Defendant removed the action to the Middle District of Pennsylvania pursuant to 28 U.S.C. ยง 1332. Presently before this Court are three motions in limine seeking to exclude the expert opinions and testimony of three of Plaintiffs' witnesses. Briefing has concluded and these motions are now ripe for disposition.[1] For the following reasons, Defendant's motions in limine as to Dr. Richard R. Parizek and William J. Rogers will be denied without prejudice with leave to renew some of its objections at trial in accordance with this memorandum opinion. Defendant's motion in limine as to Plaintiff Allen S. Fisher will be denied without prejudice as to the two statements regarding the properties of bentonite mud but with prejudice as to the remaining specific and discrete statements objected to therein.


The Court assumes the parties' familiarity with the factual background and procedural history of this case but will provide a brief review. Plaintiffs are the owners of a dairy farm property in Centre County, Pennsylvania. The farm produces crops which feed the milk-producing livestock. The manure from the livestock is applied to the fields in order to provide for continued crop yields.

Between 2005 and 2006, Plaintiff's parents, Merrill and Lois Fisher, entered into an agreement which granted Defendant an easement to allow Defendant to construct a pipeline on Plaintiff's property for the transportation of natural gas. Defendant commenced pipeline construction on the Fisher farm in 2007 through a process known as horizontal directional drilling (hereinafter "HDD"). This involved drilling underground using a pilot hole and then pushing the pipeline through the pilot hole. Defendant's representatives used bentonite mud, which is a clayish, non-porous material, to lubricate the pipeline as it pushed through the pilot hole.

Following the installation of the pipeline, Plaintiff began to notice and complain of various problems including severe drainage issues which have created large amounts of standing water in his fields and have affected his ability to plant crops and operate equipment on his land. The parties primarily dispute the causation of these issues. Plaintiffs claim that the problems they are experiencing developed as a result of a series of "frack-outs" on the part of Defendant's representatives in which the bentonite mud did not return to the surface as it ordinarily should but rather remained underground. They assert further that the mud dried underground and formed a non-porous barrier underneath the Fisher farm. Defendant avers, on the other hand, that its drilling activities did not create these complained-of problems on the Fisher farm, but that the property has always been poorly drained and therefore prone to the problems Plaintiffs are now experiencing. Rather, it argues, the issues suffered by Plaintiffs, to the extent they even exist, are a result of natural forces.


A motion in limine is filed prior to trial and requests that the judge rule that certain inadmissible evidence be excluded from introduction or reference at trial. See Leonard v. Stemtech Health Sciences, Inc., 981 F.Supp.2d 273, 276 (D.Del. 2013) (citing Laufen Int'l, Inc. v. Larry J. Lint Floor & Wall Covering, Co., No. 2:10-cv-199, 2012 WL 1458209, at * 1 (W.D.Pa. Apr. 27, 2012) (explaining that a motion in limine requests that the court "prohibit opposing counsel from referring to or offering evidence on matters prejudicial to the moving party.")); see also Bradley v. Pgh Bd. Of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990) (holding that the purpose of a motion in limine is to "narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions."). Evidence should only be excluded on a motion in limine if it is clearly inadmissible on all potential grounds. See id. ; see also Law v. Stevens Transport, No. 2:12-cv-544, 2013 WL 4858653, at * 1 (S.D. Ohio Sept. 11, 2013). It is the movant who bears the burden of demonstrating that the evidence is inadmissible on all potential grounds. See id. (citing Berry v. Mission Grp. Kan., Inc., No. 08-2439-JPO, 2010 WL 2160897, at *1 (D.Kan. May 28, 2010)).


In this case, Defendant is seeking to preclude at trial the expert testimony and opinions of three of Plaintiff's witnesses. The admissibility of expert evidence is governed by Federal Rule of Evidence 702, which allows a witness who is qualified as an expert to give testimony that would otherwise be inadmissible. Fed.R.Evid. 702; Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). That rule provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Following the United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Court of Appeals for the Third Circuit has held that Rule 702 "embodies a trilogy of restrictions on expert testimony: qualifications, reliability and fit." Schneider, 320 F.3d at 404. In so holding, it empowered the district court to act as gatekeeper, preventing opinion testimony that does not meet the aforementioned requirements. See Daubert, 509 U.S. at 592 ("Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a) whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue."). Nevertheless, Rule 702 is not meant to be an exclusionary rule; rather, it is "meant to instruct the district courts in the sound exercise of their discretion in making admissibility determinations." Holbrok v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 782 (3d Cir. 1996).

Qualification requires that a witness proffered to testify as an expert have specialized knowledge, skills, or training. See In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 741 (3d Cir. 1994); see also Schneider, 320 F.3d at 404 (demonstrating that these requirements continue to exist following the 2000 amendments to Rule 702). The Third Circuit has interpreted this requirement liberally, allowing expert testimony of witnesses who have specialized knowledge or training even in the absence of formal qualifications. See id. ("Rule 702's liberal policy of admissibility extends to the substantive as well as the formal qualification of experts. We have eschewed imposing overly rigorous requirements of expertise and have been satisfied with more generalized qualifications.... [H]owever, the level of expertise may affect the reliability of the expert's opinion.").

Reliability means that the testimony "must be based on the methods and procedures of science' rather than on subjective belief or unsupported speculation'; the expert must have good grounds' for his or her belief. In sum, Daubert holds that an inquiry into the reliability of scientific evidence under Rule 702 requires a determination as to its scientific validity." Id. at 742 (quoting Daubert, 509 U.S. at 590). In making a determination of reliability, Daubert instructs on several nonexclusive factors that may be taken into account: (1) the testability of the expert's hypothesis; (2) whether the methodology has been subjected to peer review and publication; (3) the frequency by which the methodology leads to erroneous results; and (4) the existence and maintenance of standards controlling the technique's operation, and whether the methodology has been generally accepted in the scientific community. Daubert, 509 U.S. at 593-94. The Third Circuit has also elaborated on what factors the court should consider, including: (1) the degree to which the expert testifying is qualified; (2) the relationship of a technique to more established modes of scientific analysis; and (3) the non-judicial uses to ...

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