United States District Court, N.D. West Virginia, Wheeling
MEMORANDUM ORDER AND OPINION DENYING DEFENDANTS'
MOTION TO EXCLUDE EXPERT TESTIMONY AND MOTION FOR SUMMARY
PRESTON BAILEY JUDGE
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
MOTION TO EXCLUDE EXPERT TESTIMONY
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].
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,  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].
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
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].
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
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.
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.
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.
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 ...