Marcum v. Columbia Gas Transmission, LLC

549 F.Supp.3d 408

Scott R. MARCUM and Kerstin Marcum, Plaintiffs,

v.COLUMBIA GAS TRANSMISSION, LLC, Columbia Gas Transmission Communications Corporation, Crown Castle International Corp. and Percheron, LLC, Defendants.

CIVIL ACTION NO. 19-3873

United States District Court, E.D. Pennsylvania.

Signed July 19, 2021

Joseph P. Green, Jr., Law Offices, West Chester, PA, for Plaintiffs.

Alex G. Mahfood, Nicole A. Jensen, Reed Smith LLP, Pittsburgh, PA, Francis J. Grey, Jr., Ricci Tyrrell Johnson & Grey, Philadelphia, PA, for Defendant Columbia Gas Transmission, LLC.

Anthony J. Canale, Simon & Simon, PC, Philadelphia, PA, for Defendants Columbia Gas Transmission Communications Corporation, Crown Castle International Corp.

Elizabeth M. Thomas, McGuireWoods, Charlotte, NC, Gregory J. Krock, Blaec C. Croft, McGuireWoods LLP, Pittsburgh, PA, for Defendant Percheron, LLC.

MEMORANDUM OPINION

WENDY BEETLESTONE, District Judge This suit arises from the installation of a gas pipeline through the residential property of Plaintiffs Scott and Kerstin Marcum. Plaintiffs allege that the flow of stormwater runoff onto their property increased following the installation, resulting in property damage. They blame the pipeline's owner, Defendant Columbia Gas Transmission, LLC ("Columbia"), which, they say, failed to restore the property with sufficient stormwater management controls. They bring claims for: (1) negligent construction and failure to maintain; (2) violation of the Pennsylvania Storm Water Management Act ("SWMA"), 32 Pa. Stat. Ann. § 680.13 ; (3) nuisance; (4) trespass to land by alteration of surface and subsurface drainage; and, (5) breach of fiduciary duty to maintain.¹ Columbia moves to exclude the testimony of Plaintiffs’ liability expert, Chad Ingram, and for summary judgment.

I. BACKGROUND

The property in question has been subject to a pipeline easement since 1957, when the original owner entered into a Right of Way Agreement with Columbia's predecessor granting the latter the right to install and operate a 10-inch underground gas pipeline through the premises.

Plaintiffs bought the property in 1998. Shortly thereafter, they were approached by Columbia, which sought to amend the 1957 Agreement. Specifically, it proposed replacing the existing 10-inch pipeline with a 24-inch pipeline (the "1896 line"). Plaintiffs wouldn't agree to the amendment, so Columbia initiated a condemnation action as authorized by the Natural Gas Act, 15 U.S.C. § 717f(h). That litigation was resolved in 2002, when Plaintiffs entered into an amended Right of Way Agreement with Columbia for the installation, operation, and maintenance of the 1896 line (the "2002 Amendment").

A few years later, an agent for Columbia approached Plaintiffs seeking to amend the 2002 Amendment. Columbia wanted to install another pipeline—this one 26-inches in diameter (the "1278 line"). In 2014, after consulting with an attorney, Plaintiffs entered into a second amended Right of Way Agreement with Columbia for the installation, operation, and maintenance of the 1278 line (the "2014 Amendment"). In conjunction with the 2014 Amendment, Plaintiffs executed a release of claims. In return Plaintiffs received $35,000 from Columbia.

Columbia sought permission for construction of the 1278 line from the Federal Energy Regulatory Commission ("FERC") and applied for various state permits. In support of its applications, Columbia submitted to FERC, the Pennsylvania Department of Environmental Protection ("PADEP"), and the Chester County Conservation District ("CCCD") an updated Erosion and Sediment Control Plan as well as Post Construction Storm Water Management and Site Restoration Plans for review and approval. FERC approved the 1278 pipeline on December 18, 2014. In February 2015, the CCCD in conjunction with the PADEP issued to Columbia an Erosion and Sediment Control General Permit ("ESCGP-2"). The following month, FERC issued a notice to proceed with construction of the 1278 line through Plaintiffs’ property.

Columbia installed the 1278 line in the summer of 2015. The construction process was not entirely smooth. Plaintiffs’ property is located downslope from two other properties. To prevent excess stormwater from running down this slope and entering Plaintiffs’ property during construction, Columbia installed temporary erosion and sediment ("E&S") controls. These controls were overburdened in July by a significant overnight rain. Stormwater runoff flowed toward Plaintiffs’ home, leaving sediment deposits on their rear patio and yard. Columbia installed additional E&S controls in response, but these too were overwhelmed during an August storm, resulting in washout of the restored easement area.

There were, from Plaintiffs’ perspective, issues with Columbia's post-construction site restoration efforts as well. According to Plaintiffs, prior to the 2015 construction, there were several water diversion features on the properties of Plaintiffs and their uphill neighbor which served to lessen the flow of stormwater onto Plaintiffs’ property. They contend, primarily, that upon finishing construction of the 1896 line in 2002, Columbia built a water diversion berm—a retentive grading technique used to manage stormwater runoff—in the easement area across Plaintiffs’ backyard. The purpose of this berm, according to Plaintiffs, was to divert enhanced stormwater runoff resulting from the 2002 construction away from Plaintiffs’ home, allowing it to instead drain to the side of Plaintiffs’ house and into culverts in the street below. Plaintiffs contend that Columbia removed this berm when installing the 1278 line and failed to replace it when restoring the site.

Columbia disputes these facts. It agrees, however, that there were certain permanent berms located on the property immediately uphill from Plaintiffs’ own which were removed and replaced during the 2015 construction. The parties now dispute whether these replacement berms serve to concentrate, rather than disperse, stormwater runoff toward Plaintiffs’ home. Columbia also acknowledges that, as part of the construction process, a number of trees were cleared from Plaintiffs’ property as well as from the property of Plaintiffs’ uphill neighbor. These trees were not replaced. The parties dispute whether Columbia undertook any stormwater remediation measures in the formerly wooded area, such as cultivating brushy vegetation to help slow the velocity of stormwater and surface runoff coming down the hillside.

According to Plaintiffs, since the 2015 installation of the 1278 line, increased stormwater runoff has caused significant damage to their home and property including, in February 2018, the formation of a large and growing sinkhole within the easement area. Plaintiffs filed this action shortly thereafter.

II. COLUMBIA'S DAUBERT MOTION

Plaintiffs proffer Chad Ingram, an engineer, to testify regarding the effect of the pipeline construction on stormwater flow. Plaintiffs contend that Ingram's reports and testimony in this matter support their allegation that Columbia's failure to install adequate stormwater controls increased the flow of runoff onto their property. Columbia moves to exclude Ingram's testimony and opinions pursuant to Federal Rule of Evidence 702.²

A. Legal Standard

The Federal Rules of Evidence govern the admission of expert opinions in a federal case. Daubert v. Merrell Dow Pharm. , 509 U.S. 579, 587-89, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

This rule "embodies a trilogy of restrictions on expert testimony: qualification, reliability, and fit." Schneider ex rel. Estate of Schneider v. Fried , 320 F.3d 396, 404 (3d Cir. 2003). Qualification requires "that the witness possess specialized expertise." Id. To be reliable, the expert's opinion must be premised on more than mere " ‘subjective belief or unsupported speculation’; the expert must have ‘good grounds’ for his or her belief." In re Paoli R.R. Yard PCB Litig. , 35 F.3d 717, 742 (3d Cir. 1994) (quoting Daubert , 509 U.S. at 590, 113 S.Ct. 2786 ). Finally, the expert's testimony must "fit" the case at hand, that is, "must be relevant for the purposes of the case and must assist the trier of fact." Calhoun v. Yamaha Motor Corp., U.S.A. , 350 F.3d 316, 321 (3d Cir. 2003) (quoting Schneider , 320 F.3d at 405 ). When a party challenges an expert's opinions pursuant to Rule 702, the proffering party bears the burden of demonstrating by a preponderance of the evidence that the opinions of its proposed expert are admissible. Padillas v. Stork-Gamco, Inc. , 186 F.3d 412, 417-18 (3d Cir. 1999).

The proffering party is not, however, required to "carry the burden of proving to the judge that the expert's assessment of the situation is correct." United States v. Mitchell , 365 F.3d 215, 244 (3d Cir. 2004) (quoting Ruiz-Troche v. Pepsi Cola Bottling Co. , 161 F.3d 77, 85 (1st Cir. 1998) ); see also Paoli , 35 F.3d at 744 ("The grounds for the expert's opinion merely have to be good, they do not have to be perfect."). Trial courts must act as gatekeepers to ensure the relevance and reliability of all expert testimony, Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), but this gatekeeping obligation "is not intended to serve as a replacement for the adversary system," Fed. R. Evid. 702, advisory committee's note. "Vigorous cross-examination, presentation of contrary evidence, and careful...