United States District Court, E.D. Louisiana
ORDER AND REASONS
MARTIN L. C. FELDMAN, District Judge.
Before the Court are three motions: (1) the plaintiffs' renewed motion to certify class; (2) the defendants' joint motion to strike expert affidavits, reports, and testimonies and exhibits in support of the motion to certify class; and (3) the defendants' joint motion to strike testimony of plaintiffs in support of the motion to certify class. The motions to strike are considered first. For the reasons that follow, the motions to strike are DENIED, and the motion to certify class is also DENIED.
The putative class plaintiffs raise claims of damage stemming from construction of an intake canal under Dwyer Road in the Ninth Ward of New Orleans. The Dwyer Road Intake Canal is part of the Southeastern Louisiana Urban Flood Control Project (SELA), a federal partnership with state and local Louisiana governments authorized by Congress in 1996 and administered by the U.S. Army Corps of Engineers. See Water Resources Development Act of 1996, PL 104-303, October 12, 1996, 110 Stat 3658, § 533. Upon completion, the Dwyer Intake Canal will be 7, 000 feet long and 14 to 16 feet deep, and run from the Dwyer Road Pumping Station, located at the intersection of Dwyer and Jourdan Roads, to the St. Charles Canal, near the intersection of Dwyer and Camelia Court.
The plaintiffs allege that the Sewerage & Water Board exercised oversight and control over the project in accordance with its statutory mandate. La. Rev. Stat. 33:4081. It is uncontested that Hill Brothers Construction, Inc. acted as general contractor for construction of the canal under a contract with the Corps. Construction began in September or October of 2008 and continued for several years; the project still remains unaccepted by the government. The project allegedly has required excavation of 110, 000 cubic yards of soil to an average depth of 18 feet, which in turn has required a comprehensive dewatering effort to keep ground and rain water from filling excavated areas. Thus, a retaining structure 25 feet wide and 18 feet deep was built along the entire project. In addition to excavation, the project is alleged to have involved significant pile-driving. According to plaintiffs, 86, 000 square feet of sheet piling, 178, 000 linear feet of timber, and 17, 250 linear feet of steel pipe piling were driven into the ground at the project site.
During the project, defendants collected and monitored data on vibrations and groundwater levels. The purpose of this effort was to allow the S&WB to investigate anticipated damages claims by property owners. Plaintiffs and putative class representatives filed this action in the Orleans Parish Civil District Court on August 13, 2012, against the S&WB among others, claiming that excavation, dewatering, and pile-driving related to the project had resulted and would result in damage to their immovable property, which, in turn, had caused mental anguish and emotional distress. The theories of recovery pleaded were: (1) damage caused by a thing in custody under La. Civ. Code arts. 2317 and 2317.1; (2) strict liability for ultrahazardous activity under La. Civ. Code art. 667; (3) negligent damaging and misrepresentation under La. Civ. Code art. 2315; (4) inverse condemnation under Article I, section 4 of the Louisiana Constitution; (5) failure to protect from vice, ruin, or defect under La. Civ. Code arts. 662, 667, and 668; and (6) intentional misrepresentations and mistreatment before and during construction.
In May 2013, the S&WB filed a third-party complaint against Hill Brothers, claiming that Hill Brothers was responsible for the construction activities that allegedly damaged plaintiffs' property, and that, in doing so, Hill Brothers had breached its construction contract. Although plaintiffs originally named Hill Brothers and other private contractors in their original damages petition, they moved to dismiss them voluntarily without prejudice in early September 2012.
Hill Brothers removed this action on June 14, 2013, and answered the S&WB's third-party complaint with several affirmative defenses.
The plaintiffs first filed a motion to certify class in another section of this Court almost two years ago. The Court subsequently granted a motion to continue the motion's submission date and the plaintiffs' request for pre-certification discovery. A year later, in January 2015, the plaintiffs renewed their motion to certify class action. But shortly thereafter, Judge Berrigan recused herself from the case and it was transferred to this section. This Court, in attempt to start anew, denied without prejudice the motion to certify and cancelled the as-yetunscheduled hearing that Judge Berrigan had granted. In that same Order, the Court granted the plaintiffs leave to submit a renewed motion to certify, "along with a supported request for an evidentiary hearing or oral argument, should they deem either proper." The Court also instructed the plaintiffs to submit, along with their renewed motion, all exhibits that they wished the Court to consider. The plaintiffs filed their motion and requested oral argument, which was granted; a request for a hearing was never made.
The plaintiffs seek to define the class as:
All property owners and residents who owned immovable property or resided within 1, 000 feet to the north and south of Dwyer Road from Jourdan Road to Tulip Street, New Orleans, Louisiana 70126, during the time period of September 9, 2008 to the present and continuing until the Dwyer Intake Canal project is fully completed and accepted.
The defendants oppose class certification and move to strike several plaintiffs' exhibits.
I. Motion to Strike Expert Exhibits
Rule 702 was enacted in response to the United States Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kuhmo Tire v. Carmichael, 526 U.S. 137 (1999), which held that before an expert is allowed to testify, the trial court must assess the reliability of the methodology of the proposed expert and the relevance of the testimony to the facts at issue. Legier & Materne v. Great Plains Software, Inc., No. 03-0278, 2005 WL 2037346 at *1 (E.D. La. Aug. 3, 2005) (Duval, J.). Rule 702 provides:
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.
Under Daubert, the proponent of the evidence must first prove that the offered testimony is based on sufficient facts or data. See Fed.R.Evid. 702. Next, the party must "demonstrate that the expert's findings and conclusions are based on the scientific method, and, therefore, are reliable.... The expert's assurances that he has utilized generally accepted scientific methodology is insufficient." Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc). The proponent of the evidence must prove the testimony's reliability by a preponderance of the evidence. Id . In Daubert, the Supreme Court identified a non-exclusive list of factors for a district court to consider in determining reliability: (1) whether the theory has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error; and (4) the general acceptance of the methodology in the scientific community. Daubert, 509 U.S. at 593-95. A district court must focus on methodology, not conclusions. In Kumho Tire, the Court cautioned that the district court must ensure "that an expert, whether basing testimony upon professional studies or personal experiences, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152. After the proponent of the expert testimony has carried her burden of showing reliability, the party must also prove the expert opinions' relevance. That is, that the experts' opinions have "a valid... connection to the pertinent inquiry." Daubert, 509 U.S. at 592.
At the certification stage, however, the district court does not conduct a comprehensive Daubert review. Rather, the plaintiffs need only show that their "expert onions contain no flaws that would render them inadmissible as a matter of law: the methodology must show some hallmarks of reliability, whether through peer review or use of generally accepted standards or methods; the expert must be qualified; and the opinion must have some probative value for the issues of class certification. In re Katrina Canal Breaches Consol. Litigation, No. 05-4182, 2007 WL ...