United States District Court, W.D. Virginia, Abingdon Division
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
P. Jones United States District Judge.
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.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. These motions are now before me for
Procedural History & Factual Background.
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.)
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
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
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).
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.
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.
Motions by Plum Creek/Highland.
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
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.
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 ...