Plaintiffs Cause Exclusion of Their Environmental Expert by Failing to Respond to Motion in Limine

    Court: Supreme Court of Appeals of West Virginia
    Jurisdiction: Federal
    Case 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.


    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.


    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.”


    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.