Court: Supreme Court of Appeals of West VirginiaJurisdiction: FederalCase Name: Campbell v. CSX Transp., Inc.Citation: 2019 W. Va. LEXIS 407
In this case, the petitioners’ appeal against the exclusion of their environmental expert witness was not considered erroneous because the petitioners failed to preserve this issue for appeal.
Facts
In June 2010, serious rainstorms in some regions of Logan County, West Virginia were flooded. The petitioners, who were inhabitants of the unincorporated town, Landville, claimed that the defendants had negligently induced the flooding, harming the petitioners’ property. The petitioners claimed that the surface water flow originated from the mountain where the participants were engaged in business operations. One of the defendants brought a motion to exclude the testimony of the petitioners’ environmental expert witness, which was granted by the circuit court. The petitioners appealed the decision in this motion.
The Environmental Expert Witness
The petitioners’ environmental expert witness was a licensed professional engineer with an active registration in West Virginia and Mississippi. He held a master’s degree and a Ph.D. in environmental engineering as well as additional degrees in hazardous waste management and civil engineering. The expert owned an environmental consulting company that offered comprehensive advice and litigation assistance on multiple environmental engineering issues. He also served as a master’s level professor at a university West Virginia.
Petitioners’ Arguments against Exclusion
On appeal, the petitioners asserted that the circuit court erred in excluding the opinion of the environmental expert for three reasons: (1) His testimony met with the criteria of West Virginia Evidence Rule 702; (2) that Daubert did not apply; (3) that the submission of the expert was adequately credible under Gentry v. Mangum.
Discussion
The court observed that, in the course of the circuit court proceedings, the defendants had lodged a motion in limine to exclude the report of the petitioner’s environmental expert who had been deposed earlier, to which the petitioners had failed to respond in a timely fashion.
The court discovered that the petitioners had not retained this dispute for appeal and refused to acknowledge this error, noting that, “where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal,” and that “the party complaining on appeal of the admission of evidence bears sole responsibility for adequately preserving the record on meaningful appellate review,” citing State Road Commission v. Ferguson. The court further cited Maples v. W. Va. Dep’t of Commerce, Div. of Parks and Recreation in stating that “a litigant may not silently acquiesce to an alleged error . . . and then raise that error as a reason for reversal on appeal.”
Held
The court held that there was no error on the part of the circuit court in excluding the testimony of the petitioner’s environmental expert witness.
About the author
Zach Barreto
Zach Barreto is a distinguished professional in the legal industry, currently serving as the Senior Vice President of Research at the Expert Institute. With a deep understanding of a broad range of legal practice areas, Zach's expertise encompasses personal injury, medical malpractice, mass torts, defective products, and many other sectors. His skills are particularly evident in handling complex litigation matters, including high-profile cases like the Opioids litigation, NFL Concussion Litigation, California Wildfires, 3M earplugs, Elmiron, Transvaginal Mesh, NFL Concussion Litigation, Roundup, Camp Lejeune, Hernia Mesh, IVC filters, Paraquat, Paragard, Talcum Powder, Zantac, and many others.
Under his leadership, the Expert Institute’s research team has expanded impressively from a single member to a robust team of 100 professionals over the last decade. This growth reflects his ability to navigate the intricate and demanding landscape of legal research and expert recruitment effectively. Zach has been instrumental in working on nationally significant litigation matters, including cases involving pharmaceuticals, medical devices, toxic chemical exposure, and wrongful death, among others.
At the Expert Institute, Zach is responsible for managing all aspects of the research department and developing strategic institutional relationships. He plays a key role in equipping attorneys for success through expert consulting, case management, strategic research, and expert due diligence provided by the Institute’s cloud-based legal services platform, Expert iQ.
Educationally, Zach holds a Bachelor's degree in Political Science and European History from Vanderbilt University.
