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Clark v. McElroy Coal Co.

United States District Court, N.D. West Virginia, Wheeling

September 18, 2017




         Currently pending before this Court is defendants' Motion to Exclude Expert Testimony and Motion for Summary Judgment [Doc. 24], filed July 26, 2017. Plaintiffs filed a response to the Motion on August 9, 2017 [Doc. 27]. Defendants filed a reply on August 22, 2017 [Doc. 28]. Having been fully briefed, this matter is now ripe for decision. For the reasons set forth below, this Court denies defendants' Motion to Exclude Expert Testimony and Motion for Summary Judgment.


         A. BACKGROUND

         This case arises from an action originally filed in the Circuit Court of Marshall County, West Virginia, on July 20, 2016 [Doc. 1 -1 ]. Defendants timely removed the case to this Court under federal diversity jurisdiction, 28 U.S.C. § 1332, on August 22, 2016 [Doc. 1].

         Plaintiffs subsequently filed an Amended Complaint [Doc. 6] on September 6, 2016. In the Amended Complaint, plaintiffs note that they own a home and approximately 65 acres of property situated in the Cameron area of Marshall County, West Virginia, while defendants own and/or lease certain coal interests on the same [Id. at ¶¶ 9-12]. Defendants' mining operations under plaintiffs' property has allegedly caused and are continuing to cause subsidence damage to plaintiffs' real and personal property [Id. at ¶ 14]. Plaintiffs now seek recourse under four theories of liability: (1) a common law claim for "Support of the Surface Estate"; (2) a statutory action brought pursuant to the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code §§ 22-3-25(f) and 22-3-25(c), and W.Va. C.S.R. §§ 38-2-16.1.a and 28-2-16.2.c. 1-3; (3) an additional statutory action brought pursuant to the Federal Surface Mining Control and Reclamation Act, [1] 30 U.S.C. §§ 1270(f), 1270(a), and 1309(a)(1), and provisions of 30 C.F.R. § 817.121 [Id. at ¶¶ 20-60]; and (4) an additional common law claim for "Promissory Estoppel, Agency and Respondent Superior." Plaintiffs claim a number of property-based damages resulting from the subsidence, including damage to the surface, damage to the physical structures located on the property, loss of use, and loss of property value [Id. at ¶¶ 25-28]. Plaintiffs also allege damages related to their private use and enjoyment of the property, including annoyance and inconvenience [Id. at ¶¶ 28-29].

         With regards to defendants' Motion to Exclude Expert Testimony [Doc, 24], defendants seek a ruling excluding any testimony from plaintiffs' liability expert, George Carter, Jr., P.E. Defendants' basis for this Motion is plaintiffs' failure to provide an expert report from Mr. Carter until after the period allowed for discovery had elapsed [Doc. 28 at 1].

         On October 5, 2016, this Court ordered plaintiffs to make their Rule 26(a)(2) disclosures of expert witnesses no later than February 21, 2017, and for defendants to make such expert disclosures by April 4, 2017 [Doc. 11]. By stipulation, the parties agreed to extend the deadlines for the disclosure of expert witnesses to March 20, 2017, for the plaintiffs and April 24, 2017, for the defendants [Docs. 16, 24-4].

         On March 20, 2017, plaintiffs disclosed their expert witness as to liability, George Carter, Jr., P.E., however they did not produce an expert report [Docs. 23 at 3, 27 at 3]. Plaintiffs' initial disclosure of Mr. Carter outlined Mr. Carter's background and experience, his opinion that "to a reasonable degree of engineering certainty . . . damages to the Plaintiffs' surface lands, residence and related structures were caused by underground coal mining and the effects of subsidence related to those underground mining operations, " and the materials Mr. Carter analyzed in forming that opinion [Doc. 21 at 2]. The initial disclosure also indicated that Mr. Carter was "in the process of preparing a report that will be submitted as soon as it is completed." Id.

         Mr. Carter's expert report was not produced until July 26, 2017, [Docs. 27-8, 28 at 1], after several emails, letters, and in person interactions from defense counsel allegedly went ignored [Docs. 24-5, 24-6, 24-7, 24-8, 24-9]. By the time Mr. Carter's report was produced, the discovery deadline had passed and the defendants had filed the Motion before this Court. Despite the report being four months late, plaintiffs never sought a continuance or an extension of any deadlines with this Court.

         Plaintiffs contend that after the initial disclosure of Mr. Carter, the defendants produced additional documents as discovery continued, and that Mr. Carter needed to review those documents before he could issue his report [Doc. 27 at 3-4]. However, Mr. Carter was unable to complete his review of the file and unable to visit the plaintiffs' property until July 14, 2017, as he underwent eye surgery related to cataracts. Id. at 4. Mr. Carter's affidavit states that he was evaluated on April 28, 2017, for cataract eye surgery due to continued headaches and vision problems [Doc. 27-9 at 1]. He had two cataract surgeries on May 20 and June 13, 2017. Id. Mr. Carter "experienced vision problems and headaches that prohibited [him] from doing any extensive, long-term reading, " both prior to and after completion of his surgeries. Id. Thus, Mr. Carter was unable to review the additional documentation that was provided to him after his initial opinion, which was necessary for completion of his final opinion and report. Id. Mr. Carter was able to visit the plaintiffs' property on July 17, 2014, after which he "prepared and finalized [his] report as soon as reasonably possible given the ... circumstances." Id.

         B. DISCUSSION

         "[A] party must disclose to the other parties the identity of any witness it may use at trial." Fed.R.Civ.P. 26(a)(2)(A). "Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case." Fed.R.Civ.P. 26(a)(2)(B). This report must include:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.


         "If a party fails to provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1) (emphasis added). In determining whether a nondisclosure of evidence is substantially justified or harmless for the purposes of this ...

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