United States District Court, M.D. Louisiana
CEDAR LODGE PLANTATION, LLC, ET AL.
CSHV FAIRWAY VIEW I, LLC, ET AL.
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court are several motions, including a Motion for
Reconsideration or, Alternatively, Motion to Amend (Doc.
223) filed by Cedar Lodge Plantation, LLC
("Cedar Lodge"); a Motion for Certificate
of Appealability (Doc. 224) filed
by Cedar Lodge; a Motion for
Reconsideration Pursuant to Federal Rule of Civil Procedure
54(b) (Doc. 225) filed by CSHV Fairway View I,
LLC, CSHV Fairway View II,
LLC and Campus Advantage, Inc. (collectively "Fairway
View"); a Motion for Reconsideration on Order
Granting STS's Motion for Summary Judgment (Doc.
231) filed by Cedar Lodge; a Motion in
Limine to Exclude Evidence and Testimony Regarding the
Alleged Cost to Drain the Pond (Doc. 229) filed by
Fairway View; and a Motion in Limine to Exclude
Evidence and Testimony Regarding Alleged Sewage Discharges
After January 29, 2013 (Doc. 236) filed by Fairway
View. The parties have filed memoranda in opposition, (Docs.
232, 234, 238, 239, 244, 246), and replies, (Docs. 249, 250,
253), where applicable. The Court has jurisdiction pursuant
to 28 U.S.C. § 1332. Oral argument is not necessary.
Lodge initiated this action against Fairway View on January
29, 2013, in the Nineteenth Judicial District Court, Parish
of East Baton Rouge, State of Louisiana, (see Doc.
1), alleging that Fairway View is "responsible for the
continuous, unpermitted discharge of harmful or hazardous
substances, pollutants and/or contaminants, including but not
limited to raw sewage onto Plaintiffs' property, "
(Doc. 50 at ¶ 9). Cedar Lodge sought damages resulting
from Fairway View's allegedly negligent actions and
specifically sought "the cost of remediation and repair
of Plaintiffs' property, diminution of the value of
Plaintiffs' property, loss of use and enjoyment of
Plaintiffs' property, lost business opportunity[, ]
and/or lost profits . . ." (Doc. 50 at ¶ 25).
parties filed several evidentiary and dispositive Motions,
upon which, after considering the positions raised during
oral arguments on the assertions presented in those Motions,
the Court entered rulings thereon. (See Docs. 219,
222). Immediately thereafter, the parties filed
several additional motions seeking further review of the
merits of their claims and defenses, each of which are
addressed separately below.
Motions for Reconsideration
Cedar Lodge's Motion for Reconsideration
Motion, Cedar Lodge asks the Court to, inter alia,
reconsider the portion of the Daubert Ruling that
limited the testimony of its purported environmental expert,
Mr. Suresh Sharma. (Doc. 223). Cedar Lodge's motion
focuses on that portion of the Daubert Ruling in
which the Court held that (1) Mr. Sharma may not testify
regarding the potential impact that an assessment of
contaminant concentrations under Toxicity Characteristic
Leaching Procedure ("TCLP") standards might have on
this litigation without having completed the entire TCLP
process'' and (2) Mr. Sharma may not testify about
the trend analysis he conducted to assess the directional
flow of the alleged contaminants. (See Doc. 222).
Federal Rules of Civil Procedure do not expressly recognize a
motion for reconsideration. Bass v. U.S. Dep't of
Agric., 211 F.3d 959, 962 (5th Cir. 2000). However, the
United States Court of Appeals for the Fifth Circuit has
consistently recognized that such a motion may challenge a
judgment or order under Rules 54(b), 59(e), or 60(b) of the
Federal Rules of Civil Procedure. See, e.g., U.S. ex rel.
Spicer u. Westbrook, 751 F.3d 354, 367 (5th Cir. 2014)
(reviewing an appeal of a motion for reconsideration under
Rule 59(e)); Iturralde v. Shaw Grp., Inc., 512
F.App'x 430, 432 (5th Cir. 2013) (reviewing an appeal of
a motion for reconsideration under Rule 54(b)); United
States v. William, 124 F.3d 192 (5th Cir. 1997)
(reviewing an appeal of a motion for reconsideration under
Rule 60(b)). Cedar Lodge has specifically requested that the
Court grant reconsideration under Rules 59(e), 60(b)(1)
and/or 60(b)(6). (See Doc. 223-1 at p. 2).
Rule 59(e) motion 'calls into question the correctness of
a judgment.'" Templet v. HydroChem Inc.,
367 F.3d 473, 478 (5th Cir. 2004) (In re Transtexas Gas
Corp., 303 F.3d 571, 581 (5th Cir. 2002)). "A Rule
59(e) motion must clearly establish either a manifest error
of law or fact or must present newly discovered
evidence" and cannot be used to "raise arguments
that could, and should, have been made before the judgment
issued." Advocare Int'l LP v. Horizon Labs.,
Inc., 524 F.3d 679, 691 (5th Cir. 2008). "A
'manifest error' is not demonstrated by the
disappointment of the losing party. It is the 'wholesale
disregard, misapplication, or failure to recognize
controlling precedent.'" Shaw v. Broadcast.com,
Inc., No. 98-cv-2017-P, 2005 U.S. Dist. LEXIS 34553, at
*5 (N.D. Tex. Dec. 20, 2005) (quoting Oto v. Metro. Life
Ins. Co., 224 F.3d 601, 606 (7th Gir. 2000)); cf.
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.
2004) (defining "manifest error" in the appellate
review context as "one that is plain and indisputable,
and that amounts to a complete disregard of the controlling
law"), Courts have significant discretion in deciding
whether to grant a motion to reconsider under Rule 59(e).
Templet, 367 F.3d at 479. Nevertheless, granting a
motion for reconsideration is "an extraordinary remedy
that should be used sparingly.'' Id. Thus,
in determining whether to grunt a motion to reconsider,
courts must balance "the need to bring litigation to an
end" and "the need to render just decisions on the
basis of all the facts." Id.
purpose of Rule 60(b) is to balance the principle of finality
of a judgment with the interest of the court in seeing that
justice is done in light of all the facts." Hesling
v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005)
(citing Seven Elves, Inc. v. Eskenazi, 635 F.2d 396,
401 (5th Cir. Unit A Jan. 1981)). Similar to the standard
under Rule 59(e), "the decision to grant or deny relief
under Rule 60(b) lies within the sound discretion of the
district court and will be reversed only for abuse of that
discretion." Id. (quoting Edwards v. City
of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc))
(internal citations omitted). A district court may grant
relief under Rule 60(b) for one of six reasons listed
therein: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence; (3) fraud,
misrepresentation, or misconduct by an opposing party; (4) a
void judgment; (5) a satisfied, released, or discharged
judgment; or (6) any other reason that justifies relief.
Fed.R.Civ.P. 60(b). The Fifth Circuit has instructed that
relief under Rule 60(b)(6) "is mutually exclusive from
relief available under sections (1)-(5)."
Hesling, 396 F.3d at 642 (citing Transit Cos.
Co. v. Sec. Trust Co., 441 F.2d 788, 792 (5th Cir.
1971)). Furthermore, relief under Rule 60(b)(6) is only
warranted when "extraordinary circumstances are
present." Id. (quoting Am. Totalizator Co.,
Inc. v. Fair Grounds Corp., 3 F.3d 810, 815 (5th Cir.
1993)) (internal citation omitted).
Reconsideration of TCLP Testimony
Arguments of the Parties
Lodge insists that Mr. Sharma should be allowed to testify
regarding his findings under Step One of the TCLP procedure,
which determines the total concentration of heavy metals and
compares them to TCLP's threshold numbers for screening.
(Doc. 223-1 at p. 4). In the Daubert Ruling, the
Court held that Mr. Sharma may not testify about the
applicability of TCLP standards to Cedar Lodge's claims
of contamination because such testimony would amount to
"unfounded speculation" and would not be helpful to
the jury because Mr. Sharma failed to complete the TCLP
process. (Doc. 222 at p. 8). Cedar Lodge urges that Step One
of the TCLP process is severable from Step Two, which tests
for the leachability of the medium - here, the pond sludge -
in determining whether the pond is contaminated.
(Id. at pp. 4-5). Because Cedar Lodge believes that the
"Step One conclusion can be severed from Step Two such
that failure to conduct Step Two should...not bear on whether
a Step One conclusion is reliable and helpful to a jury,
" Cedar Lodge maintains that Mr. Sharma should be
allowed to testify about TCLP findings. (Doc. 223-1 at pp.
View counters that the Court should deny Cedar Lodge's
Motion to reconsider its Daubert Ruling regarding
Mr. Sharma's ability to testify on TCLP standards.
Fairway View asserts that because Mr. Sharma testified that
Step Two of the TCLP process is necessary to his analysis of
the pond's current state and whether it is contaminated,
and because he has not completed Step Two, he has no opinions
regarding the entire TCLP analysis. (Doc. 234 at p. 3).
Court finds that Cedar Lodge has not offered any persuasive
reason for which the Court should allow Mr. Sharma to testify
about the TCLP's impact on its claims of contamination.
That is, Cedar Lodge has not demonstrated that the
Court's Daubert Ruling was manifestly erroneous,
therefore warranting modification, or that relief is
otherwise justified. As has been stated throughout this
litigation, the purpose of the overall TCLP process is to
determine how hazardous a specific contaminants' presence
in a medium affects a body of water. Cedar Lodge does not
dispute that Mr. Sharma did not complete the entire TCLP
process. (See Doc. 223-1 at p. 4). If Cedar Lodge wished to
solicit testimony from Mr. Sharma that under TCLP standards,
the pond is contaminated, such testimony would only be
reliable if Mr. Sharma had completed the entire TCLP process
and obtained final results under the procedure to support his
conclusion. Mr. Sharma's proposed testimony must be
supported by "appropriate validation - i.e.,
'good grounds, ' based on what is known."
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
592-593 (1993). Whether Cedar Lodge's pond contains
contaminants that have an adverse environmental impact under
TCLP standards requires a completion of the TCLP process.
Because that process is incomplete, the answer to that
question is unknown, and any testimony regarding the
completed step of the TCLP process would invite the jury to
speculate about the results of Step Two and, consequently,
the overall process. The testimony that Cedar Lodge wishes to
solicit from Mr. Sharma would be misleading under Federal
Rules of Evidence 403 and 702 given the incomplete nature of
the TCLP process. Therefore, the Court finds that it would be
improper for Mr. Sharma to present any testimony
indicating an affirmative answer to the question of whether
the pond is contaminated, which would be based solely on Step
One of the process. Accordingly, the Court declines to
reconsider that portion of the Daubert Ruling
addressing Mr. Sharma's ability to testify regarding TCLP
that Cedar Lodge has not presented a legally sufficient
argument in support of its Motion for reconsideration
regarding Mr. Sharma's proposed TCLP testimony, that
portion of the Motion is DENIED.
Reconsideration of Trend Analysis Charts and Related
Arguments of the Parties
Lodge also asks the Court to reconsider the portion of its
Daubert Ruling prohibiting Mr. Sharma from
testifying about the source of alleged contamination based on
several trend analyses he reviewed and/or prepared. (Doc.
223-1 at pp. 5-7). Cedar Lodge argues that this testimony
should be allowed because (1) the charts are accurate, even
if they do not contain every single data point; (2) the
charts are not part of the methodology or conclusions reached
in Mr. Sharma's report and therefore do not under mine
Mr. Sharma's conclusions regarding the ultimate source of
the contamination; and (3) the last trend analysis chart,
which plots fecal coliform values as ascertained in a
December 2012 sampling of the subject pond, contains all of
the data points and is not misleading. (Doc. 223-1 at pp.
View disagrees, emphasizing that Mr. Sharma's charts are
inaccurate because he "consistently ignored data that
did not support the opinions Cedar Lodge wanted him to give
in this case, excluded that data without any scientific or
statistic reason for doing so, and had no explanation for why
he excluded only data that did not support his
conclusions." (Doc. 234 at p. 5). Fairway View also
argues that the Court should disregard Cedar Lodge's
assertions regarding the validity of Mr. Sharma's
conclusions and the accuracy of the fecal coliform trend
analysis chart, maintaining that the charts are visual
representations of Mr. Sharma's conclusions and that the
final trend analysis also fails to plot the biochemical
oxygen demand ("BOD") and total suspended solids
("TSS") data points "because both samples
contain data points that were significantly higher farther
away from Fairway View." (Id. at p. 6).
Cedar Lodge's arguments in support of the trend
analysis's reliability, the Court emphasizes
that an inadequate indicia of reliability was not the basis
upon which Mr. Sharma's trend analysis testimony and
charts were excluded. In its Daubert Ruling, the
Court held that although the methods that Mr. Sharma used to
gather his information were reliable, the trend analysis
charts and related testimony are misleading under
Rule 403. (See Doc. 222). Cedar Lodge has not
offered any why reason the Court should recant that finding,
and therefore Cedar Lodge's Motion to reconsider the
admissibility of Mr. Sharma's trend analysis and related
testimony is DENIED.
hearing on Fairway View's Motion in Limine (Doc. 145),
the Court deferred ruling on Mr. Sharma's qualifications
pending a thorough review of his curriculum vitae
and other related documents. As has been previously noted,
Mr. Sharma was offered by Cedar Lodge as a professional in
geoscience/geology, specifically as those fields relate to
the analysis and evaluation of environmental contaminants,
contamination, and migration trends of contaminants. Fairway
View was allowed to traverse Mr. Sharma's qualifications
at the evidentiary hearing, but the Court ...