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Cedar Lodge Plantation, LLC v. CSHV Fairway View I, LLC

United States District Court, M.D. Louisiana

September 6, 2017




         Before 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.

         I. BACKGROUND

         Cedar 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).

         The 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).[1] 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.


         A. Motions for Reconsideration

         1. Cedar Lodge's Motion for Reconsideration

         In its 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.[2] (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''[3] 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).

         a. Legal Standard

         The 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).

         "A 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).[4] "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., 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.

         "The 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).

         b. Reconsideration of TCLP Testimony

         i. Arguments of the Parties

         Cedar 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).[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. 5-6).

         Fairway 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).

         ii. Analysis

         The 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 standards.

         Finding 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.

         c. Reconsideration of Trend Analysis Charts and Related Testimony

         i. Arguments of the Parties

         Cedar 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. 5-6).

         Fairway 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).

         ii. Legal Analysis

         Despite 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.

         d. Mr. Sharma's Qualifications

         At the 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 ...

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