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Burdette v. Vigindustries Inc.

United States District Court, D. Kansas

March 18, 2014

KENNETH BURDETTE, et al., Plaintiffs,
v.
VIGINDUSTRIES INC., Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

In 2002, Defendant Vigindustries, Inc. ("Vigindustries") acquired land in Hutchinson, Kansas, upon which the Carey Salt Company solution mines operated from 1903 to 1998. Before and after Vigindustries purchased this land, large sinkholes developed, and Vigindustries took measures to prevent further sinkhole development. Plaintiffs are residents of Careyville, a subdivision adjacent to the abandoned salt mines, who brought this action claiming negligence and nuisance based on Vigindustries' activities. Before the Court are Defendant's Motion for Summary Judgment (Doc. 187), and Motion to Exclude Expert Opinions of Dr. David L. Mitchell (Doc. 185). For the reasons explained in detail below, the Court grants both motions.

I. Uncontroverted Facts and Summary of Plaintiffs' Claims

The following facts are either uncontroverted or stipulated. The Careyville neighborhood is located in the southeastern portion of the City of Hutchinson, Kansas. Careyville once consisted of approximately 300 residences built on land adjacent to the wellfield where the former Carey Salt Company's solution mining operation was located. Solution mining operations were conducted on the wellfield adjacent to Careyville (and now owned by defendant Vigindustries) from 1903 to 1998, with about 106 brine wells distributed across the roughly 200 acres comprising the wellfield. No solution mining operations have occurred on the wellfield since 1998. Defendant Vigindustries acquired the land comprising the wellfield in 2002. Vigindustries never drilled or operated any brine wells on the wellfield or in the Careyville area.

In January 2005, the underground cavern resulting from one of the brine wells collapsed, creating a sinkhole near the northern edge of the wellfield. At the direction of the Kansas Department of Health and Environment ("KDHE"), Vigindustries investigated the brine wells and caverns on the wellfield. As a result of Vigindustries' investigation, and in agreement with the KDHE and the City of Hutchinson, Vigindustries announced in August 2009 that it would make offers to buy certain residential properties located on the northern and eastern edges of the Careyville neighborhood in order to increase the buffer between the former brine wells on the wellfield and the residential properties in Careyville.

To determine which homes should be included in the buyout, Vigindustries' geologists and geotechnical engineers at Burns & McDonnell reviewed all documented sinkholes related to salt solution mining in Kansas. Burns & McDonnell determined that the largest documented sinkhole related to salt solution mining in Kansas occurred at the Cargill plant in Hutchinson in 1974. The Cargill sinkhole had a radius of 180 feet. Burns & McDonnell proposed and Vigindustries adopted this maximum-observed radius of 180 feet to determine the scope of the buyout in Careyville. Essentially, Burns & McDonnell drew a circle with a radius of 180 feet around each well along the edges of the neighborhood, resulting in a line through the neighborhood. Those homes which were inside that line were included in the buyout. The purpose of Vigindustries' buyout was to buy those homes and move those residents who were at risk of a future sinkhole because of proximity to the solution wells on the wellfield.

Vigindustries announced that it planned to remove the homes on the property it purchased in Careyville and to maintain the property as an undeveloped buffer between the residential property in Careyville and the former brine wells on the wellfield. Vigindustries' agreement with the KDHE and the City of Hutchinson provided, among other things, that if any of the homeowners to whom Vigindustries planned to make offers declined to sell their property to Vigindustries, the City of Hutchinson would initiate condemnation proceedings under its power of eminent domain to acquire the property. Vigindustries made offers to purchase thirty-seven properties in Careyville. All but one of the homeowners who received offers from Vigindustries sold their property to Vigindustries. One owner, Bill Stull, rejected Vigindustries' offer. Pursuant to the agreement between Vigindustries, the KDHE, and the City of Hutchinson, the City acquired Mr. Stull's property through a condemnation proceeding in state court. The homes purchased by Vigindustries on the perimeter of the Careyville neighborhood were removed from the property and a decorative fence was erected between the property acquired by Vigindustries and Careyville. By April 2, 2010, with the exception of the property owned by Mr. Stull, the acquisition of the property for the buffer was complete. By May 2010, all of the homes purchased by Vigindustries, with the exception of the homes owned by Mr. Stull and by Milda Friesen, had been removed. The Careyville properties purchased by Vigindustries were on William Street and Carey Boulevard.

Plaintiffs Kenneth and Linda Burdette, Donna Schroeder, Robert and Tresia England, Danny and Sharon Sidebottom, Glen West, James West, and Stephanie Brown all own residential property in Careyville that was not purchased by Vigindustries in the buyout.[1]

Plaintiffs Kenneth and Linda Burdette claim that, among other things, their home has sustained cracks in the ceiling, walls, garage floor and driveway, that their roof sags, and that they have an unexplained hole under their driveway. The Burdettes first noticed the cracks in their ceiling, walls, driveway and garage floor, the hole under their driveway and the sagging roof more than ten years before their depositions were taken in November 2010. Mr. Burdette has known that the field east of Careyville was used for salt solution mining since he moved to Careyville in approximately 1980; he suspects that the hole under his driveway was caused by actions connected with the salt mining on the wellfield. Knowing about the 2005 sinkhole on the wellfield, in combination with Vigindustries' buyout, caused Mrs. Burdette concern that her home might be in danger. She read of the latest sinkhole in the newspaper when it occurred.

Plaintiff Stephanie Brown claims, among other things, that her home has cracks in its foundation and back porch walls, that her basement floor and backyard slope, and that the end of her driveway has sunk. Ms. Brown first noticed this damage to and around her home five years or more before her deposition was taken in November 2010. Ms. Brown has known there were brine wells on the field east of Careyville since her father purchased her house in Careyville in approximately 1989. Ms. Brown believes that the cracks in her foundation were caused by the ground shifting associated with the salt wells. One reason she associates the cracks with the salt wells is the existence of sinkholes on the wellfield, including the 2005 sinkhole. Ms. Brown heard of the 2005 sinkhole on the day it happened.

Plaintiffs Danny and Sharon Sidebottom claim that their home had cracks in the walls and that their backyard was uneven and had sinking spots and unexplained holes. The Sidebottoms first noticed the cracks and changes in their yard in approximately 1994. In early 2007, the Sidebottoms noticed that their house had shifted on its foundation. Shortly after that, in May 2007, their basement wall collapsed. Mrs. Sidebottom suspects the damage to her house was caused by the salt wells. The Sidebottoms learned of the solution wells on the wellfield right after the 2005 sinkhole occurred.

Plaintiffs James and Glen West have known of subsidence in the yard of their property in Careyville since the mid-1960s. The Wests' foundation and basement collapsed in approximately 1986. The Wests also claim that their windows and doors were hard to open and shut, that their patio and sidewalk had sunk and were broken, and that their driveway was tilted and broken. The Wests first noticed these problems with their windows and doors, patio, sidewalk, and driveway more than five years before their depositions were taken in November 2010. Glen West believes that much of the structural damage to the Wests' house was related to the type of mining done on the wellfield, although he does not know for sure. James West believes that the basement on their house collapsed because of subsidence caused by the salt mining around Careyville. James and Glen West have been aware that the field east and north of Careyville was used for salt solution mining for decades. Glen West has known of sinkholes in the field east of Careyville since he was a child growing up in Careyville. James West first learned of the most recent sinkhole in 2005. He was aware of other sinkholes on the wellfield during his childhood. James West was born in 1945.

Plaintiffs filed this action on January 6, 2010, alleging several claims associated with their allegation that Vigindustries and its predecessors in interest failed to use reasonable care in the operation and maintenance of the Careyville salt mines and that they failed to use reasonable care in developing the buffer zone. Plaintiffs' remaining claims in this case are for negligence and nuisance.

Plaintiffs assert that Defendant was negligent in five ways: (1) failing to properly support the land adjacent to the salt mine; (2) failing to properly maintain the abandoned salt mine; (3) failing to timely detect, prevent, stop or remedy land subsidence and sinkhole development; (4) creating and maintaining a dangerous condition; and (5) failing to create a reasonable buffer zone and identify and purchase all homes at risk of future subsidence.

Plaintiffs allege nuisance in four ways: (1) the ground movement, subsidence and sinkholes, along with the resulting damage to Plaintiffs' homes; (2) the risk of future subsidence to Plaintiffs' homes; (3) Defendant's failure to create a reasonable buffer zone and identify and purchase all homes at risk of future subsidence including Plaintiffs' has created a nuisance and interfered with the Plaintiffs' use and enjoyment of their properties; and (4) Defendant's demolition and removal of homes on the north and east perimeter of the Careyville neighborhood and the resulting increase in train and elevator noise, increase in rodent and wildlife infestation, and decrease in the aesthetics of the neighborhood.

Plaintiffs claim the following damages were caused by Defendant's actions: physical damage to Plaintiffs' homes and property; a decrease in the market value of Plaintiffs' homes and property as a result of both the physical damage and the stigma now associated with the homes; loss of the full use of their homes and property; deprivation of the peaceful use and enjoyment of their homes and property; and inconvenience, discomfort, and annoyance.

II. Motion to Exclude

Plaintiffs disclosed two experts for this case: Robert A. Simons to testify about the diminution in Plaintiffs' property values as a result of the buyout, and David L. Mitchell on geological issues surrounding the wellfield. Dr. Mitchell, a consulting forensic geoscientist, opines that over-drilling and the uncertain geology of the salt member below the Carey Wellfield, create a risk of land subsidence and risk of future subsidence for all property owners in Careyville. Dr. Mitchell further opines that there is no scientific method available to identify and insure a permanent "safe zone" within the wellfield, or any part of Careyville. Defendant moves the Court to exclude this testimony because: (1) Dr. Mitchell is not qualified to render these opinions; (2) it is not reliable; and (3) it is not relevant. As explained below, the Court excludes this testimony.

A. Standard

The Court has broad discretion in deciding whether to admit expert testimony.[2] ...


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