Plaintiff sued defendant construction company for violating the Clean Water Act. The plaintiff hired an Oceanography Expert Witness to provide expert witness testimony. The defendant filed a motion to exclude, which was granted in part and denied in part by the court.
Facts: This case (Gulf Restoration Network v. Oscar Renda Contracting, Inc – United States District Court – Southern District of Mississippi – May 9th, 2018) involves a claim under the Clean Water Act. The plaintiff seeks a declaration that the defendant violated the clean water act during a construction project and an injunction requiring them to mediate the adverse effects to the aquatic resources. The plaintiff hired Oceanography Expert Witness Kevin S. Dillon, a coastal sciences professor at the University of Southern Mississippi, to provide an expert witness report. The defendant filed a motion to exclude Mr. Dillon’s expert witness report.
Discussion: The defendant objects to one Mr. Dillon’s opinions because it concerns another area of study, geology, rather than his area of study, which is oceanography and environmental science. The defendant also argues that Mr. Dillon does not rely on any data or facts in drawing his conclusions.
The defendant challenges Dillon’s qualifications as they relate to his analysis and conclusions about a photograph. They state that Dillon is engaging in the unauthorized practice of geology when he offers an opinion about the photograph. The court disagrees, stating that Dillon is qualified to testify on the issue raised by the defendants. Mr. Dillon’s not being a registered professional geologist should not prevent him from testifying in this case and that any arguments about this go to the weight of the evidence, not the admissibility.
The defendants also allege that Mr. Dillon’s other opinions are not reliable because they are not based on adequate data. They argue that he took no measurements, performed no field tests, took no photographs, and did not review any pertinent documents. The court agrees with the defendant on this issue. The court opines that Dillon did not describe the construction project or how he arrived at any of his conclusions. In addition, he admits that he has not made any actual measurements of the sediment runoff. Last, he did not conduct any studies in the bayous or the Back Bay.
The court further notes that Dillon has formed his opinions simply from his knowledge that these effects have occurred in other instances and are not based on any personal observations or measurements. Thus, this part of his expert opinion will not be allowed. But, he will be able to testify about sediment runoff in general.
Conclusion: The expert witness testimony of Mr. Kevin S. Dillon will be granted in part and denied in part.