United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge.
Day, LLC (“Day”) and Kent Upton (“Plaintiff
Upton”) (collectively “Plaintiffs”) brought
this action against Plantation Pipe line Company
(“Plantation”) and Kinder Morgan Energy Partners
L.P. (“Kinder Morgan”) (collectively
“Defendants”) alleging various state-law tort
claims as well as claims under the citizen-suit provisions of
the Clean Water Act (“CWA”) and Resource
Conservation and Recovery Act (“RCRA”). The Court
has before it Defendants' Motion for Partial Summary
Judgment (doc. 54), as well as Defendants' Motion to
Exclude Testimony of Barry Sulkin (doc. 56) and Second Motion
to Exclude Testimony of Barry Sulkin (doc. 81). For the
reasons stated more fully herein, Defendants' Motion for
Partial Summary Judgment is due to be granted; their Motion
to Exclude Testimony of Barry Sulkin is due to be granted;
and their Second Motion to Exclude Testimony of Barry Sulkin
is due to be denied as moot.
own a pipeline system that runs from Louisiana to Washington,
D.C. which transports refined petroleum products such as
diesel and gasoline. In 1979, Plantation discovered a dent in
the pipeline in Shelby County, Alabama near the crest of
Double Mountain. Plantation determined that if the dent was
not repaired, that section of the pipeline stood a higher
chance of failure. Plantation undertook to repair the dent by
the installation of a “B-sleeve, ” a
full-encirclement, pressure-containing sleeve.
it is installed, a B-sleeve is composed of two separate
half-pipe pieces that fit together to form a slightly larger
pipe section. The B-sleeve is cut along the length of the
pipe, so that if one was to look at the cross-section of a
B-sleeve there would be two half-circles of equal
circumference. In order to install the B-sleeve as Plantation
did in 1979, an operator lays the two sections of the
B-sleeve over the affected area, welds along the seams
connecting the two parts of the B-sleeve to form what is
essentially a larger pipe-sleeve that wraps around the full
circumference of the pipe, and the affected area. The
circumferential ends of the B-sleeve are then welded so that
they close the ends of the sleeve. A B-sleeve is pressure
containing, so that even if the affected area leaks, the
leaking fluid cannot normally escape past the B-sleeve.
(Wright Depo at 51-53.)
49 C.F.R. § 195.452, Defendants were required to create
so-called Integrity Management Programs (“IMPs”)
for pipeline segments in “high consequence
areas.” IMPs are written frameworks that operators use
to prevent pipeline accidents and implement where an accident
occurs. Defendants' current IMP requires that the
B-sleeve used to “patch” a dent would require an
epoxy filler be placed between the dent and the B-sleeve.
(Doc. 83-6 at 1; Caligiuri Depo. at 98-99.) However, at the
time of the repair in 1979 Plantation's maintenance
standards did not require any filler, and there in fact was
no filler placed between the dent and the B-sleeve.
1989, Plantation excavated the dented portion of the pipeline
to determine whether the use of a non-low-hydrogen weld
around the B-sleeve had led to any hydrogen embrittlement,
which could compromise the integrity of the seal.
(Id. at 111-112.) Defendants conducted a
nondestructive examination technique called a “dye
penetrant inspection” to test for defects along the
weld of the B-sleeve. (Caligiuri Report at 13.) The technique
did not expose any issues in the 1979 repair's integrity,
and after additional visual inspection, Defendants reburied
the pipe section. Following the 1989 test, there appears to
have been no further excavations of the pipeline until the
leak in 2014. In 2000, Kinder Morgan began to operate
Plantation and the pipeline, employing a number of
sophisticated techniques and operations to monitor the
operation of the pipeline.
own in total approximately 250 acres of land adjacent and
contiguous to Defendants' right of way for the pipeline.
The property is used for commercial and recreational hunting
and fishing. Plaintiff Upton also resides on the property. On
August 21, 2014, Grant Upton, who is Plaintiff Upton's
son, called his father to tell him that there was a strong
smell of gasoline in the valley and that he observed gasoline
pooling in a stream in the valley floor of Double Mountain on
Plaintiff Upton's property. Plaintiff Upton came to the
property and then called Plantation to report what he
believed to be a gasoline leak.
mobilized employees and third-party contractors, and by that
evening had assembled approximately one hundred persons at
the site. Plantation also contacted the Alabama Department of
Environmental Management (“ADEM”) and the United
States Environmental Protection Agency (“EPA”)
about the release. Three days later on August 24, 2014,
Plantation had traced the source of the leak to the section
of the pipeline that was repaired in 1979 with the B-sleeve.
It completed repairs of the pipeline on that same day. A
later laboratory analysis of the B-sleeve and underlying
pipeline section showed that a crack had developed within the
dent that had been sleeved in 1979.
and its contractors continued their emergency response and
cleanup based on written plans for product recovery and
monitoring local surface water bodies. By September 2, 2014,
Plantation had completed its emergency response actions and
had transitioned to long-term site management. ADEM and EPA
representatives completed a site walk on September 10, 2014,
and agreed that all measures up to that point were completed
the initial emergency response and into the long-term site
management phase, one of Plantation's contractors, CH2M
Hill Engineers, Inc. (“CH2M”) prepared a number
of reports on behalf of Plantation to submit to state and
federal regulators. After submitting a summary report of
emergency response actions, CH2M submitted a Site Assessment
Work Plan (the “Work Plan”) which laid out a
number of tasks to find the extent of the damage, continue
monitoring risk areas, and remediate the site. ADEM approved
the Work Plan on October 6, 2014. Throughout 2015, CH2M
submitted multiple reports to ADEM that kept the regulator
abreast of the remediation and testing work CH2M was
performing, and allowed ADEM to continue to monitor and
propose additional clean-up measures.
Standard of Review
motion for summary judgement is appropriate when “the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A fact is
“material” if it “might affect the outcome
of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see
also Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d
1287, 1294 (11th Cir. 2013). A genuine dispute as to a
material fact exists “if the nonmoving party has
produced evidence such that a reasonable factfinder could
return a verdict in its favor.” Greenberg v.
BellSouth Telecommunications, Inc., 498 F.3d 1258, 1263
(11th Cir. 2007) (quoting Waddell v. Valley Forge Dental
Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001)).
The trial judge should not weigh the evidence but must simply
determine whether there are any genuine issues to be resolved
at trial. Anderson, 447 U.S. at 249.
considering a motion for summary judgment, trial courts must
give deference to the non-moving party by “view[ing]
the materials presented and all factual inferences in the
light most favorable to the nonmoving party.”
Animal Legal Def. Fund v. U.S. Dep't of Agric.,
789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
However, “unsubstantiated assertions alone are not
enough to withstand a motion for summary judgment.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529
(11th Cir. 1987). Conclusory allegations and “mere
scintilla of evidence in support of the nonmoving party will
not suffice to overcome a motion for summary judgment.”
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir.
2016) (per curiam) (quoting Young v. City of Palm Bay,
Fla., 358 F.3d 859, 860 (11th Cir. 2004)). “[T]he
moving party has the burden of either negating an essential
element of the nonmoving party's case or showing that
there is no evidence to prove a fact necessary to the
nonmoving party's case.” McGee v. Sentinel
Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir.
2013). Although the trial courts must use caution when
granting motions for summary judgment, “summary
judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the
Federal Rules as a whole.” Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986).
argue that Plaintiffs' expert Barry Sulkin
(“Sulkin”)'s testimony that there continues
to be an ongoing leak from the pipeline should be excluded
under Rule 702 and the framework of Daubert v. Merrell
Dow Pharmaceuticals., Inc., 509 U.S. 579 (1993). Rule
702 states that 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. The Court has the obligation to screen
expert evidence under Rule 702 to ascertain if it “is
not only relevant, but reliable.” Daubert, 509
U.S. at 589. “[T]he requirement that an expert's
testimony pertain to ‘scientific knowledge'
establishes a standard of evidentiary reliability.”
Id. at 590 . Daubert's requirements
apply not only to scientific knowledge, but also to all forms
of specialized knowledge on which experts testify. Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999). Under
Daubert, the Court's inquiry is flexible, but
“[t]he focus, of course, must be solely on principles
and methodology, not on the conclusions that they
generate.” 509 U.S. at 594-595.
Bay Water v. HDR Engineering, Inc. directs the Court to
conduct a three-part inquiry to determine the admissibility
of expert testimony, weighing whether:
(1) [T]he expert is qualified to testify competently
regarding the matters he intends to address;
(2) the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined by the
sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the
application of scientific, technical, or specialized
expertise, to understand the evidence or to determine a fact
731 F.3d 1171, 1183 (11th Cir. 2013) (quoting City of
Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562
(11th Cir. 1998)).
testimony is key to Plaintiffs' CWA claim because, as
stated below, in order for Plaintiffs to maintain their CWA
claim they must show that there is an ongoing violation at
the time they filed suit. Sulkin stated in his expert report
and testified during his deposition that there was a
continuing leak in the pipeline. Defendants argue that
Sulkin's testimony to such should be struck because (1)
he is not qualified to testify on whether the pipeline is
continuing to leak based on pipeline design and site geology
and (2) the methodology Sulkin uses to testify to the
pipeline leakage is not based on reliable principles or
is an environmental consultant with over forty years of
experience studying the impacts of a variety of pollutants on
surface waters, ground waters, and wetlands. He has worked as
an environmental regulator for what is now the Tennessee
Department of Environment and Conservation and for the EPA.
(Doc. 74 at 4.) Sulkin has visited the contamination site on
two different occasions, in February 2017 and April 2017, and
in both occasions he observed, smelled and performed sampling
of ongoing gasoline contamination. He took samples of water
and sediment during those visits and sent those samples to
laboratories for analysis which confirmed the presence of
gasoline. Sulkin also based the conclusions contained in his
expert report on the documents submitted by Defendants to
ADEM as part of the ongoing reporting requirements.
asked Sulkin during his deposition how he came to the
conclusion that there was an ongoing release of gasoline from
Defendants' pipeline. He first identified that the
gasoline smell was a “fresh” smell as opposed to
a smell of gasoline that has decayed:
Q: . . . I want to make sure I understand what you're
saying about the possibility that there's an ongoing
release of the pipeline, okay? Are you saying to a reasonable
degree of scientific certainty that's your opinion that
there's an ongoing release there?
Q: Have you done any testing to determine that?
A: Only the testing for the BTEX constituents.
A: And what I saw and smelled at the site.
A: Smells way too fresh for being two years old.
(Doc. 67-1 at 207-08.) Sulkin then goes on to describe in
another case how he had suspected an ongoing leak based on
the smell of “fresh gasoline, even after the source
storage tank was tested by a pressurizing device and showed
there was no leak. Eventually, according to Sulkin, after
digging around the tank a hole was spotted in the tank,
showing that the “fresh” smell of gasoline
correctly indicated an ongoing leak. (Id. at
211-12.) However, Sulkin does not explain this methodology in
greater detail other than stating that the smell of fresh
gasoline is different than stale gasoline.
additionally stated that the high elevation at which he saw
gasoline led him to conclude there is an ongoing release:
Q: . . . So do you have any other basis for your belief that
there's an ongoing release?
Q: Tell me what.
A: As I described earlier, the elevation, to me, makes it
incomprehensible that all the free product hasn't always
moved down into the valley. It's just too steep, too long
a time since the release that if it wasn't free product
it would be gone by now, and what would be coming out of the
ground would be very faint and diluted. It wouldn't still
be enough to grow the orange material, wouldn't have that
strong presence of gasoline.
(Id. at 211.)
are significant problems with Sulkin's competency to
render the opinion that there is an ongoing leak based on the
two methods stated above, i.e., the “smell-test”
and the geology of the site. Sulkin admits he is not a
geologist and he has not studied the geology of the release
site. (Sulkin Depo. at 44, 216.) While he has worked with
other gasoline spills before, he has never worked with sites
that are in mountainous terrain like the Plantation pipeline.
(Id. at 216.) He likewise admits has not conducted
any mapping of the “plume migration, ” the
direction of movement of the gasoline through the
groundwater, because he doesn't “do that kind of
work.” (Sulkin Depo. at 213.) His theory of a
continuous leak is thus based on the shaky inference that
because the pipe leak occurred at a high elevation, gravity
must have already pulled all gasoline to lower elevations,
and because there is still gasoline at high elevations there
still is a leak.
offer no basis for this theory, and while Sulkin may be
qualified to testify on the remediation of dangerous chemical
spill sites Plaintiffs have not shown how he is qualified to
testify on the movement of gasoline through subsurface.
“Merely demonstrating that an expert has experience,
however, does not automatically render every opinion and
statement by that expert reliable.” Hendrix ex rel.
G.P. v. Evenflo Co., 609 F.3d 1183, 1201 (11th Cir.
2010). The Advisory Committee Notes to Rule 702 state:
If the witness is relying solely or primarily on experience,
then the witness must explain how that experience leads to
the conclusion reached, why that experience is a sufficient
basis for the opinion, and how that experience is reliably
applied to the facts. The trial court's gatekeeping
function requires more than simply “taking the
expert's word for it.” . . . The more subjective
and controversial the expert's inquiry, the more likely
the testimony should be excluded as unreliable.
Notes on Rules-2000 Amendment (quoting Daubert v. Merrell
Dow Pharms., Inc., 43 F.3d 1311, 1319 (9th Cir.
1995)). While Sulkin states that he is relying on his
experience as a chemical spill remediation expert, he has
failed to show how his experience is sufficient for the
opinions he has rendered in this case, i.e., concerning the
effect of gravity on the movement of gasoline away from the
pipeline. Sulkin does not account for the other explanation
offered by Defendants for why he smelled “fresh”
gasoline-that the leaked gasoline could be trapped below the
soil surface in a non-porous pocket. During his deposition,
Sulkin admits that gasoline could be continuing to leak from
a non-porous pocket, but says he has not studied the geology
of the site and is not competent to render an opinion on that
explanation. (Sulkin Depo. at 215.)
has likewise opined on why there is an ongoing leak, stating
that he believes the repair to the B-sleeve was incorrectly
The only other factor that sort of weighs in is I know this
leak was from an old repair that re -- that failed again. So
it wouldn't be surprising to me that it's failed
again or never stopped failing. It's like trying to patch
an inner tube on your bicycle . . . That patch isn't
always going to seal all around the edges, and it's going
to leak again. It's time to get a new tube. So my best
guess - and I wouldn't even call it a guess. My best
opinion is that there's an active leak.
(Sulkin Depo. at 213.) However, Sulkin himself is admittedly
not qualified to testify on causes of the leak. He is not a
metallurgist and does not consider himself an expert in
relation to Department of Transportation regulations as they
relate to pipelines. (Id. at 45.) In the following
exchange during Sulkin's deposition, Sulkin ...