United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE.
plaintiffs own homes and real property in Bessemer, Alabama.
Between late 2013 and sometime in 2014, Oak Grove Mine
conducted longwall mining, a form of underground coal mining,
near Plaintiffs' homes. That mining caused subsidence,
defined as "[t]he gradual caving in or sinking of an
area of land, " Subsidence, Oxford Living
visited September 6, 2017). Not surprisingly, the subsidence
damaged Plaintiffs' homes and real property.
sued a number of entities associated with the mine, but the
only remaining defendants are Oak Grove Resources, LLC, and
Cliffs Resources, Inc. Oak Grove owned and operated (and
continues to own and operate) Oak Grove Mine under a permit
issued by the Alabama Surface Mining Commission. At the time
of the mining that damaged Plaintiffs' homes, Cliffs
owned Oak Grove. Plaintiffs assert that Oak Grove is liable
for negligence/strict liability; wanton, intentional, and
willful conduct; nuisance; trespass; and fraud, deceit, and
suppression of material fact. Plaintiffs claim that Cliffs,
as the former owner of Oak Grove, is liable for wanton,
intentional, and willful conduct.
earlier order, this court described the statutory and
regulatory framework governing claims arising from
mining-related subsidence damage to residential structures.
See (Doc. 57). The Alabama Surface Mining Control
and Reclamation Act of 1981 ("ASMCRA"), Alabama
Code § 9-16-70 et seq., provides the remedy to
property owners for subsidence damage caused by underground
9-16-91(e) requires underground coal mining operations to
"[p]romptly repair or compensate for material damage to
any occupied residential dwelling and related structures . .
. resulting from underground coal mining operations."
Id. § 9-16-91(e)(1). And Alabama's mining
regulations provide that the mining permittee is responsible
for providing that repair or compensation. See Ala.
Admin. Code § 880-X-10D-.58(3)(b) ("The permittee
must promptly repair, or compensate the owner for, material
damage resulting from subsidence caused to any non-commercial
building or occupied residential dwelling or structure
related thereto that existed at the time of mining.");
see also (Doc. 57 at 6-7). In addition, ASMCRA
provides that repair or compensation are "the sole and
exclusive remedies" for subsidence damage unless
"the trier of fact finds[ ] intentional, willful, or
wanton conduct." Ala. Admin. Code § 9-19-71(f).
Conduct in "substantial compliance with applicable
mining permits may not be deemed to be intentional, willful,
or wanton." Id.
based on that statutory and regulatory framework, Plaintiffs
may recover only the costs to repair material damage or to
compensate them for material damage, and only from the mining
permittee (in this case, Oak Grove), unless they can prove
that the Oak Grove and/or Cliffs engaged in intentional,
willful, or wanton conduct.
parties filed cross-motions for partial summary judgment.
Defendant Oak Grove concedes that, as the mining permittee,
it is obligated under Alabama law to repair material damage
to Plaintiffs' homes or compensate them for material
damage. But it disputes Plaintiffs' valuation of the
damage to their homes. By contrast, Cliffs contends that it
is not the mine permittee, so Plaintiffs cannot recover from
it because they have not presented any evidence creating a
genuine issue of material fact that it engaged in
intentional, willful, or wanton conduct. Likewise, Oak Grove
contends that Plaintiffs presented no evidence introducing a
genuine dispute of material fact that it engaged in
intentional, willful, or wanton conduct.
in turn, contend that they are entitled to summary judgment
because no genuine dispute of material fact exists about the
value of the subsidence damage to their houses or about
whether Defendants committed intentional and willful acts
that were not in substantial compliance with their mining
summary judgment motions have been fully briefed. (Docs. 68,
72, 74, 75, 77, 80). For the reasons stated in this
Memorandum Opinion, the court WILL GRANT
Defendants' "Motion for Summary Judgment" and
WILL DENY Plaintiffs' "Motion for
Partial Summary Judgment." The court finds that no
evidence supports a finding that Oak Grove did not
substantially comply with its mining permit; that no evidence
supports a finding that Cliffs directed Oak Grove's
mining activities; and that the sole issue on which a genuine
dispute of material fact exists is the amount of damages
Plaintiffs should recover from Defendant Oak Grove under
§ 9-16-91(e) of ASMCRA. The partes also filed motions to
strike certain evidentiary submissions and responses to those
motions. (Docs. 73, 76, 78, 79, 81, 82). The court
WILL GRANT IN PART AND DENY IN PART
Plaintiffs' motion to strike part of G. Milton McCarthy,
Jr.'s affidavit, WILL DENY
Defendants' motion to strike parts of Plaintiffs'
affidavits, and WILL DENY Plaintiffs'
motion to strike references to the Jefferson County Tax
Assessor's valuations of their homes.
MOTIONS TO STRIKE
setting forth the factual record, the court considers the
parties' motions to strike certain evidentiary
Plaintiffs' Motion to Strike Parts of G. Milton McCarthy,
move to strike parts of Deputy Attorney General G. Milton
McCarthy, Jr.'s affidavit. Those parts involve Mr.
McCarthy's discussion of the Oak Grove Mine; his
testimony about Alabama Surface Mining Commission
("ASMC") requirements and procedures; and his
opinion that Oak Grove substantially complied with its ASMC
permit terms, which would preclude a finding of intentional,
willful, or wanton conduct under ALA. CODE § 9-16-91(f).
Plaintiffs move to strike on the grounds that (1) these
portions of the affidavit constitute expert testimony and
Defendants failed to designate Mr. McCarthy as an expert
witness; (2) Mr. McCarthy's opinion testimony violates
the Alabama Attorney General's policy against offering
opinions on behalf of private litigants; (3) the mid-term
permit review on which Mr. McCarthy partially relies for his
opinion that Defendants were in substantial compliance with
their mining permit does not support his opinion; and (4) Mr.
McCarthy's opinion testimony otherwise lacks factual
put Mr. McCarthy forward as a lay witness. His affidavit
must, therefore, comply with the requirements under Federal
Rule of Evidence 701 for lay witnesses offering opinion
testimony. Mr. McCarthy's testimony is limited to those
opinions that are "rationally based on [his] perception,
" "helpful to clearly understanding [his] testimony
or to determining a fact in issue, " and "not based
on scientific, technical, or other specialized knowledge
within the scope of [Federal] Rule [of Evidence] 702."
FED. R. EVID. 701. And "[t]he evidence presented cannot
consist of conclusory allegations or legal conclusions."
Avirgan v. Hull, 932 F.2d 1572, 1577(11th Cir.
McCarthy heads the Legal Division of the ASMC and in this
capacity is "responsible for representing the ASMC in
both federal and state courts as well as managing the legal
and enforcement section of the ASMC." (Doc. 68-16 at 3
¶ 2). His affidavit concerns the matters regulated by
that commission. Thus, the portions of his affidavit that are
based entirely on Mr. McCarthy's personal knowledge and
consist of factual statements or discuss the requirements of
the statutory and regulatory framework governing subsidence
mining in Alabama, or the ASMC's interpretation and
administration thereof, are admissible. See FED. R.
EVID. 701; Langenbau v. Med-trans Corp., 167
F.Supp.3d 983, 1006 (N.D. Iowa 2016) (noting that restraints
on expert testimony do not prohibit lay witnesses from
discussing "the contents of regulations applicable to a
regulated industry in which they work . . . if they have
sufficient personal knowledge of the existence and contents
of those regulations"); Siebert v. Gene Sec.
Network, Inc., 75 F.Supp.3d 1108, 1115 (N.D. Cal. 2014)
(ruling that employee of federal agency could testify as a
lay witness as to grant procedures of the agency and specific
grant applications in evidence, but could not offer legal
witnesses may not offer legal conclusions. See, e.g.,
Arvignan, 932 F.3d at 1577. Mr. McCarthy's affidavit
breaks that rule in two places. First, his statement in
paragraph 16 that "Oak Grove's longwall mining and
subsidence of plaintiffs' properties was 'conducted
in substantial compliance' with its ASMC permit pursuant
to Ala. Code § 9-16-91(f)" is tantamount to a legal
conclusion that Defendants' conduct was not intentional,
willful, or wanton, because it mirrors the language in Ala.
Admin. Code § 9-19-71(f) setting out the standard for
intentional, willful, or wanton conduct. (Doc. 68-16 at 6
¶ 16); see Cordoves v. Miami-Dade Cty., 104
F.Supp.3d 1350, 1365 (S.D. Fla. 2015) (quoting Burkhart
v. Washington Metro. Area Transit Auth., 112 F.3d 1207,
1212 (D.C. Cir. 1997) ("If testimony 'track[s] the
language of the applicable statute' or uses a term that
'has a specialized legal meaning that is more precise
than the lay understanding of the term, ' the testimony
is an impermissible legal conclusion.")).
Mr. McCarthy attests that "In compliance with ASMC
regulations, Oak Grove's subsidence control plan
identified by name and location the known surface owners
under which it planned to mine, subside and potentially
damage."(Doc. 68-16 at 6 ¶ 12 (emphasis added)).
The first clause of that sentence-"In compliance with
ASMC regulations"-is also tantamount to an impermissible
legal conclusion. The court WILL STRIKE the
first clause in paragraph 12 and the entirety of paragraph
McCarthy also makes some assertions for which he does not
establish he has personal knowledge. The court WILL
STRIKE the first three sentences of paragraph 8 and
the second sentence of paragraph 10 of Mr. McCarthy's
affidavit for that reason. The court WILL
STRIKE the second paragraph of paragraph 10 for the
alternative reason that Mr. McCarthy has not been qualified
as a mining expert competent to testify as to longwall
mining's results generally. See FED. R. EVID.
702 (providing that a qualified expert witness may provide an
opinion where the testimony is "based on sufficient
facts or data" and "the product of reliable
principles and methods, " in addition to meeting other
struck Mr. McCarthy's opinion about Oak Grove's
substantial compliance with its permit, the court need not
address whether Mr. McCarthy provided factual support for
that opinion. And because this court is not tasked with
enforcing the laws and policies governing the office of
Alabama Attorney General, and Alabama law setting forth the
Attorney General's duties does not constitute federal
evidentiary law, the court also does not reach the question
of whether Mr. McCarthy provided his opinion in violation of
any prohibitions on Attorney General opinions on behalf of
court WILL GRANT Plaintiffs Motion to Strike
the second sentence of paragraph 10 and the entirety of
paragraph 16 and WILL DENY the Motion to
Strike as to paragraphs 3, 7, 8, 14, and 15. The court also
WILL STRIKE the first three sentences of
paragraph 8 and the first clause of the first sentence in
Defendants' Motion to Strike Portions of Plaintiffs'
move to strike four paragraphs that are substantially
identical across seven Plaintiffs' affidavits. (Docs.
70-2 through 70-8 at ¶¶ 3, 5, 9-10). Defendants
contend that the statements in those paragraphs, which
express Plaintiffs' beliefs that their homes are total
losses because of the damage incurred from Defendants'
mining activities, contradict individual Plaintiffs'
previous deposition testimony and are impermissibly
assert in their affidavits:
As the owner of the real property, I testify that my home and
its surrounding land would be worth [dollar amount-varies
among Plaintiffs] today if it had not been damaged by
subsidence. I base this testimony on the amount I originally
paid for my home, the number of years we have owned the home,
and the prices of other similar houses in the area that were
not damaged by subsidence. ... I testify that my home has no
value in its current condition because I cannot sell it with
such significant subsidence damage to it.
(Docs. 70-2 through 70-8 at ¶¶ 5, 9).
extent that Plaintiffs' affidavits express
Plaintiffs' opinions about the values of their homes, the
affidavits do not contradict earlier deposition testimony in
which Plaintiffs expressed no opinion as to the
values of their homes. Facing a similar issue, Judge Steele
held: "That [Plaintiff] may have had no idea what her
property was worth at the time of her deposition . . . does
not necessarily negate the possibility that she undertook to
formulate such opinions prior to completing the [later]
affidavit." Fisher v. Ciba Specialty Chemicals
Corporation, No. 03-0566-WS-B, 2007 WL 2995525, at *4
(S.D. Ala. Oct. 11, 2007).
the statements at issue constitute impermissible speculation.
Judge Steele persuasively addressed a nearly identical
situation in the Fisher case, admitting affidavits
in which homeowners opined as to their properties' value
"based on decades of residing there." 2007 WL
2995525, at *7. The court held that to exclude the affidavits
would reject both Alabama and federal law holding that a
landowner may testify as to his own land's value.
affiant Plaintiffs here similarly and properly base their
valuations on their own knowledge of their
properties. Thus, the court WILL DENY
Defendants' Motion to Strike.
Plaintiffs' Motion to Strike References to Jefferson
County Tax Assessor's Information
move to strike Defendants' submission of the Jefferson
County Tax Assessor's valuations of Plaintiffs'
homes. (Docs. 75-2 and 75-3). Plaintiffs argue that the Tax
Assessor's valuations (1) constitute expert testimony not
properly disclosed in advance, and (2) are inaccurate.
records do not constitute testimony by an expert witness and
are admissible as certified copies of public records under
Federal Rule of Evidence 902(4). See Simek v. J.P. King
Auction Co., 160 F.App'x 675, 685-86 (10th Cir.
2005) (holding that property assessment by county tax
assessor was admissible under Rule 902(4) and that it did not
constitute a "back door" expert opinion: "The
fact that such a tax record is relevant for this purpose [of
determining the property's value] does not automatically
subject the record to Daubert analysis where the
record is admissible on other grounds and there is no attempt
to characterize the tax record as anything other than what it
property tax assessments present one factor relevant to
determining the value of Plaintiffs' homes, and the
Federal Rules do not otherwise prohibit their admission.
See FED. R. EVID. 401(a) (providing that evidence is
relevant when "it has any tendency to make a fact more
or less probable than it would be without the
evidence"); FED. R. EVID. 402 (providing that relevant
evidence is admissible unless specified federal law provide
otherwise). Plaintiffs' challenge to the
accuracy of the tax assessments goes to the weight,
rather than the admissibility, of the evidence. The court
WILL DENY Plaintiffs' Motion to
STANDARD OF REVIEW
judgment allows a trial court to decide cases when no genuine
issues of material fact are present and the moving party is
entitled to judgment as a matter of law. See FED. R.
ClV. P. 56(a). When a district court reviews a motion for
summary judgment it must determine two things: (1) whether
any genuine issues of material fact exist; and if not, (2)
whether the moving party is entitled to judgment as a matter
of law. Id.
reviewing the evidence submitted, the court must view all
evidence and factual inferences drawn from it in the light
most favorable to the non-moving party. See Augusta Iron
& Steel Works, Inc. v. Emp'rs Ins. of Wausau,
835 F.2d 855, 856 (11th Cir. 1988) (citation omitted).
However, the non-moving party "need not be given the
benefit of every inference but only of every reasonable
inference." Graham v. State Farm Mut. Ins. Co.,
193 F.3d 1274, 1282 (11th Cir. 1999) (citation omitted).
filing of cross motions for summary judgment does not affect
the applicable Rule 56 standard. See, e.g., United States
v. Oakley, 744 F.2d 1553, at 1555-56 (11th Cir. 1984)
(quoting Bricklayers Int'l Union, Local 15 v. Stuart
Plastering Co., 512 F.2d 1017, 1023 (5th Cir.
1975)).When parties file cross motions for summary
judgment, "each side must still establish the lack of
genuine issues of material fact and that it is entitled to
judgment as a matter of law." Busby v. JRHBW Realty,
Inc., 642 F.Supp.2d 1283, 1288 (N.D. Ala. 2009)
(citations omitted). "The fact that both parties
simultaneously are arguing that there is no genuine issue of
fact. . . does not establish that a trial is unnecessary
thereby empowering the court to enter judgment as it sees
fit." Id. at 1289 (quoting 10A Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2720, at 327-28 (3d ed. 1998)).
Eleventh Circuit has noted that "[c]ross motions for
summary judgment will not, in themselves, warrant the court
in granting summary judgment unless one of the parties is
entitled to judgment as a matter of law on facts that are not
genuinely disputed." Oakley, 744 F.2d at 1555
(quoting Bricklayers, 512 F.2d at 1023).
Nevertheless, "cross-motions maybe probative of the
non-existence of a factual dispute when . . . they
demonstrate a basic agreement concerning ...