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Plum Creek Timberlands, L.P. v. Yellow Poplar Lumber Co., Inc.

United States District Court, W.D. Virginia, Abingdon Division

November 21, 2016

PLUM CREEK TIMBERLANDS, L.P.,, Plaintiffs,
v.
YELLOW POPLAR LUMBER COMPANY, INC.,, Defendants.

          Francis H. Casola and Erin Boyd Ashwell, Woods Rogers PLC, Roanoke, Virginia, Aaron B. Houchens, Stanley, Houchens & Griffith, Moneta, Virginia, and T. Shea Cook, T. Shea Cook, P.C., Richlands, Virginia, for Plaintiffs Plum Creek Timberlands, L.P., and Highland Resources, Inc.; Wade W. Massie and Seth M. Land, Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendants Range Resources-Pine Mountain, Inc., Range Resources-Appalachia, LLC, EQT Production Company, and EQT Production Nora, LLC; J. Scott Sexton, Gregory D. Habeeb, Kathleen L. Wright, and Daniel R. Sullivan, Gentry Locke Rakes & Moore, LLP, Roanoke, Virginia, for Defendants Edwin F. Legard, Jr., ; R. Lucas Hobbs, Elliot Lawson & Minor, P.C., Bristol, Virginia, for Unknown Descendants, etc., of G.W. Charles,, and Other Parties Unknown; and John M. Lamie, Browning, Lamie & Gifford, P.C., Abingdon, Virginia, for Defendants John J. Horschel,, Guardian ad Litem for Unknown Successors in Title to Yellow Poplar Lumber Company, Inc., and Trustee for Yellow Poplar Lumber Company, Inc.

          OPINION AND ORDER

          James P. Jones United States District Judge.

         This case involves a dispute over ownership of the gas estate on land located in Buchanan and Dickenson Counties in Virginia. The principal parties previously moved for summary judgment, and I denied summary judgment as to all parties.[1]The case is set to proceed to trial, and the parties have moved to exclude evidence and expert opinions offered by their opponents. The plaintiffs, Plum Creek Timberlands, L.P. (“Plum Creek”) and its affiliate, Highland Resources, Inc. (which will be referred together as “Plum Creek/Highland”), have moved to exclude the expert testimony of six expert witnesses who will testify on behalf of the various defendants. The defendants, Range Resources-Pine Mountain, Inc., Range Resources-Appalachia, LLC, EQT Production Company, and EQT Production Nora, LLC (“Range/EQT”) have moved to exclude the expert testimony of five expert witnesses who will testify on behalf of the plaintiffs and one expert witness who will testify on behalf of codefendants.[2] These motions are now before me for decision.

         I. Procedural History & Factual Background.

         I thoroughly reviewed the procedural history and facts of this case in my previous opinion denying summary judgment as to all parties and, as such, will not repeat them here. (Op. & Order 4-11, ECF No. 428.)

         II. Applicable Law.

         Both Plum Creek/Highland and Range/EQT have moved to exclude the testimony of each other's and Baker/Trivett/McGlothlin's expert witnesses. The Federal Rules of Evidence allow expert evidence under certain circumstances:

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.

         In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court concluded that the trial judge must serve in a “gatekeeping role” by ensuring that all expert evidence adduced at trial is both relevant and reliable. 509 U.S. 579, 589, 597 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (holding that Daubert's “gatekeeping obligation” applies to all expert testimony). The proponent of the evidence bears the burden of proving admissibility - that is, relevance and reliability - by a preponderance of the evidence. SeeDaubert, 509 U.S. at 592-93 & n.10 (citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)); Fed.R.Evid. 104(a).

         The trial judge has “considerable leeway in deciding . . . how to go about determining whether particular expert testimony is reliable.” Kumho Tire Co., 526 U.S. at 152. The Daubert Court identifies a number of nonexclusive factors that the trial judge should consider “where they are reasonable measures of . . . reliability, ” id., including “(1) whether the particular scientific theory ‘can be (and has been) tested'; (2) whether the theory ‘has been subjected to peer review and publication'; (3) the ‘known or potential rate of error'; (4) the ‘existence and maintenance of standards controlling the technique's operation'; and (5) whether the technique has achieved ‘general acceptance' in the relevant scientific or expert community.” United States v. Crisp, 324 F.3d 261, 265-66 (4th Cir. 2003) (quoting Daubert, 509 U.S. at 593-94). The inquiry is flexible, however, and the trial court may consider other factors as it deems appropriate. See United States v. Hassan, 742 F.3d 104, 130 (4th Cir. 2014) (citing Crisp, 324 F.3d at 266). Ultimately, the trial court must ensure that an expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., 526 U.S. at 152.

         III. Discussion.

         Plum Creek/Highland and Range/EQT have both filed motions to exclude expert testimony offered by each other and by Baker/Trivett/McGlothlin. I consider each motion in turn.

         A. Motions by Plum Creek/Highland.

         The plaintiffs, Plum Creek/Highland, have moved to exclude expert evidence on five subjects. The evidence to which the plaintiffs object includes testimony by four expert witnesses proffered by Range/EQT and two expert witnesses proffered by Baker/Trivett/McGlothlin.

         First, Plum Creek/Highland seek to exclude the testimony of Range/EQT experts Ronald Mullennex, an expert in geology and hydrogeology, and Glenn Phillips, a land surveyor. Mullennex and Phillips will testify that the Russell Fork is not a tributary of Levisa Fork. This testimony goes to the issue of whether the deed executed in 1929 conveyed the gas estates to Tracts 10 and 11 to W.M. Ritter, Plum Creek/Highland's predecessor in interest.

         Plum Creek/Highland argue that the opinions of both experts are “not based on relevant or reliable data, are the result of the application of unreliable principles and methods not based on any authoritative source, and are otherwise unreliable and not scientifically reproducible.” (Pls.' Mem. Supp. Mot. to Exclude 4-5, ECF No. 337.) Specifically, the plaintiffs complain that Mullennex and Phillips cannot show that the geological facts on which they base their opinion were true or influenced common wisdom at the time of the deed's execution, that the methodology used by Mullennex has not been ...


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