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Adler v. Elk Glenn, LLC

United States District Court, E.D. Kentucky, Southern Division

December 6, 2013

RICHARD C. ADLER, M.D., Plaintiff,
v.
ELK GLENN, LLC, et al., Defendants. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Cross-Claimant,
v.
ELK GLENN, LLC, Cross-Defendant

Page 852

For M.D. Richard C. Adler, Plaintiff: Joe F. Childers, LEAD ATTORNEY, Joe F. Childers & Associates, Lexington, KY.

For Elk Glenn, LLC, a Kentucky Limited Liability Company, Defendant: Russell H. Davis, Jr., LEAD ATTORNEY, Baird & Baird, PSC, Pikeville, KY.

For Ricky Robinson Construction, Inc., a Kentucky Corporation, Defendant: Charles Thomas Anderson, LEAD ATTORNEY, Boehl, Stopher & Graves LLP - Pikeville, Pikeville, KY.

For Kentucky Farm Bureau Mutual Insurance Company, Intervenor Defendant, Cross Claimant: Darrin Winn Banks, LEAD ATTORNEY, Porter, Schmitt, Banks & Baldwin, Paintsville, KY.

For Elk Glenn, LLC, a Kentucky Limited Liability Company, Cross Defendant: Russell H. Davis, Jr., LEAD ATTORNEY, Baird & Baird, PSC, Pikeville, KY; Stephen Leslie Hogg, LEAD ATTORNEY, Pikeville, KY.

OPINION

Page 853

MEMORANDUM OPINION & ORDER

Amul R. Thapar, United States District Judge.

A good expert witness can make all the difference at trial. Drawing on knowledge and experience far beyond that of the average juror, attorney, or judge, expert witnesses serve as guides through thickets of otherwise impenetrable data and bring scientific and technical rigor to judicial proceedings. But not just any person qualifies as an expert witness, and even the most knowledgeable and experienced of witnesses may make mistakes. The Court, as the gatekeeper in judicial proceedings, therefore stands ready to bar the admission of junk science and flawed analysis. In this case, however, the Court need not exercise its authority, since the expert witnesses retained by the parties have offered admissible testimony under Federal Rules of Evidence 702 and 703 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Page 854

BACKGROUND

Dr. Richard Adler, a physician, moved to eastern Kentucky in 2009 with the admirable aim of providing medical care to the region's low-income residents. R. 5 at 3. After struggling to find a suitable home, he decided to build one for himself in a new development, the Meadow Subdivision, owned by defendant Elk Glenn, LLC. Id. at 4. Like many housing developments in the area, the Meadow Subdivision stands upon flat land reclaimed from a surface mining operation in the 1990s. See id. Adler and Elk Glenn negotiated a deal in 2010 for Lot 20, a parcel of land in the subdivision, and later that year Adler contracted with defendant Ricky Robinson Construction, Inc. (" Ricky Robinson" ) to build a residence on the lot. Id. at 4-5. Adler moved into the house in May 2011. Id. at 6. Life moved along until August 2011, when a landscaper working on Adler's property discovered cracks in the house's brick veneer. Id. Adler alleges that these cracks have worsened over time, and he points to a host of new problems that have recently appeared. Id. at 7. He attributes the damage to the fact that his house is situated on dozens of feet of mine spoil, the material used to fill mine cavities after excavation. Id. at 7-8. Mine spoil is prone to a problem called differential settlement, which occurs when the materials beneath a house settle unevenly. In Adler's opinion, as the mine spoil under Lot 20 gradually settles over time, his house will slowly fall apart. Id. at 8-9.

Displeased with this prospect, Adler sued Elk Glenn and Ricky Robinson on a variety of contractual and tort grounds. The parties all retained multiple experts, and they moved to exclude certain of their adversaries' expert witnesses pursuant to Rules 702 and 703 and Daubert . R. 74; R. 80; R. 82. For the reasons described below, the Court will deny these motions.

DISCUSSION

When a party challenges an opponent's expert witness, the Court assumes the role of a gatekeeper to ensure the reliability and relevance of the expert's testimony. See Daubert, 509 U.S. at 597; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (applying the Daubert inquiry to non-scientific testimony). Rule 702 guides the Court through this inquiry. Rule 702 specifies, first, that an expert must be qualified to testify through knowledge, skill, experience, training, or education. Fed.R.Evid. 702. A qualified expert may then testify so long as his opinions will aid the fact finder and are reliable, meaning they stand on sufficient data, reliable methods, and the facts of the case. Fed.R.Evid. 702(a)-(d); see In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008). The Supreme Court in Daubert provided a list of factors for trial courts to consider as they evaluate the reliability of scientific testimony. See In re Scrap Metal, 527 F.3d at 529. These factors are nonexclusive, however, and a district court has " considerable leeway" in making its determination under Rule 702 and Daubert. See Meridia Prods. Liab. Litig. v. Abbott Labs., 447 F.3d 861, 868 (6th Cir. 2006) (quoting Kumho Tire Co., 526 U.S. at 152). The proponent of the testimony must establish its admissibility by a preponderance of the evidence. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001).

A hearing to decide these issues is unnecessary in this case. Under normal circumstances, a district court may resolve a Daubert motion without holding a hearing. Nelson, 243 F.3d at 249. A hearing is required only if the record is inadequate to decide the motion. See Jahn v. Equine Servs., PSC, 233 F.3d 382, 383 (6th Cir. 2000).

Page 855

In this case, the parties fully briefed the admissibility of the various challenged experts' testimony under Daubert. Cf. Nelson, 243 F.3d at 249; Barnette v. Grizzly Processing, LLC, No. 10-cv-77, 2012 WL 293305, at *2 (E.D. Ky. Jan. 31, 2012). Moreover, the parties agree that their briefs provide sufficient guidance to the Court and have asked the Court to resolve these motions without a hearing. R. ...


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