Lazy S Ranch Properties, LLC v. Valero Terminaling and Distribution

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

LAZY S RANCH PROPERTIES, LLC, an

OKLAHOMA LIMITED LIABILITY

COMPANY,

Plaintiff,

v. Case No. 19-CV-425-JWB

VALERO TERMINALING AND

DISTRIBUTION COMPANY, et al.,

Defendants.

MEMORANDUM AND ORDER

This matter came on for hearing February 5-6, 2025, on Defendants’ pending Daubert

motions. At the hearing, the court addressed Defendants’ motions, which requested an order

excluding testimony from Plaintiff’s experts Trae Miller, III, Dr. J. Berton Fisher, Dr. Kenneth J.

Ede, Dr. Kevin Boyle, and Dr. Tamzen Macbeth. (Docs. 389, 390, 391, 392, 393.) The court also

took up a motion to disqualify Kiefner and Associates, Inc. (“Kiefner”) and Trae J. Miller III based

on a conflict of interest. (Doc. 386, 395.) After hearing all testimony, the court denied the motion

to disqualify Kiefner and Miller from the bench and took the motions to exclude Plaintiff’s experts

under advisement. The court now rules on the motions previously taken under advisement.

I. Facts

The facts in this case have previously been set out by the court. (Doc. 316, 335, 357, 375.)

Briefly repeated here, Plaintiff owns and runs cattle operations on 6,150 acres of real property in

Carter County, Oklahoma (the “Lazy S Ranch” or “property”). The Roos family bought the

property for approximately $8.6 million in December 2017. The Lazy S Ranch lies above a portion

of the Arbuckle-Simpson Aquifer, which covers an area of over 500 square miles in south central

Oklahoma. The aquifer feeds numerous freshwater springs and clear running streams in the region.

Several pipelines cross the property. Central to this case is a 12-inch refined products

pipeline operated by Valero (the “Wynnewood Pipeline”). The Wynnewood Pipeline carries

gasoline and diesel from Valero's refinery at Ardmore to a refined products terminal at

Wynnewood, some 30 miles to the north. Approximately three miles of the Wynnewood Pipeline

is located beneath the property. This section of the pipeline runs essentially in a north-south

direction about 0.5 miles east of Highway 77. The pipeline also runs about 0.5 miles east of a

spring called Tulip Springs in the northwest corner of the property near Highway 77.

In July 2018, Robert Charles “Cinco” Roos, a representative of Lazy S Ranch, claims to

have smelled a diesel fuel odor emanating from Tulip Springs. Plaintiff then retained multiple

experts with experience in the fields of pipeline integrity and environmental contamination and

began investigating. These experts included Trae Miller, who traversed the entire portion of the

Wynnewood Pipeline crossing the ranch and reviewed all of Valero's pipeline integrity data from

2009-present; Dr. J. Berton Fisher, who collected samples of environmental media on the property;

and Dr. Kenneth Ede, who offered opinions on the analyzed soil, water, and air samples that were

taken. (Doc. 128, 130, 131, 197, 200, 201.) Plaintiff's experts contend the Wynnewood Pipeline

is leaking refined petroleum products into the soil, water, and air on the property. Plaintiff also

retained Dr. Kevin J. Boyle to determine the property’s potential lost water sales due to the alleged

contamination of the Arbuckle-Simpson aquifer underlying the property, and Dr. Tamzen Macbeth

to determine both damages to the property and necessary remediation costs regarding the alleged

spills from the Wynnewood Pipeline (Doc. 129, 132, 196.)

In December 2019, Plaintiff filed suit against Defendants, who are all related entities

operating the pipeline, alleging eleven claims under Oklahoma state law. After extensive

discovery, the undersigned granted summary judgment for Defendants on December 2, 2022.

(Doc. 316.) After Plaintiff prevailed on appeal to the Tenth Circuit, this case was remanded for a

trial on the issues of “negligence per se, private nuisance, and public nuisance including Lazy S’s

claims for damages.” Lazy S Ranch Props., LLC v. Valero Terminaling & Distrib. Co., 92 F.4th

1189, 1208 (10th Cir. 2024).

On remand, Defendants filed motions to exclude all of Plaintiff’s expert witnesses under

the Daubert standards of Federal Rule of Evidence 702.1 (Docs. 389, 390, 391, 392, 393.) After

full briefing on Defendant’s Daubert motions (Docs. 399, 401, 402, 403, 405, 408, 409, 410, 411,

412), the court held a hearing on February 5-6, 2025. On the first day of hearings, the court heard

testimony from Trae Miller and Dr. J. Berton Fisher. (Doc. 414, 419.) On the second day of

hearings, the court heard from Dr. Kenneth J. Ede, Dr. Kevin Boyle, and Dr. Tamzen Macbeth.

(Doc. 415, 420.) At the conclusion of the hearings, the court took the Daubert motions under

advisement.

II. Standard

Generally, district courts have broad discretion to determine whether a proposed expert

may testify. United States v. Nichols, 169 F.3d 1255, 1265 (10th Cir. 1999). Federal Rule of

Evidence 702, which controls the admission of expert witness testimony, provides:

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;

1 Plaintiff also retained Philip J. Isaacs to determine the effect of the alleged contamination on the value of the property.

(Doc. 127, 198, 199.) Although Defendants also moved to exclude his testimony (Doc. 388), Mr. Isaacs was not

present at the Daubert hearing due to personal health circumstances. Plaintiff has subsequently substituted Matthew

Trimble for Mr. Isaacs. (Doc. 413, 422, 423.) Accordingly, the court will leave for another day the Daubert motion

regarding Mr. Trimble and Mr. Isaacs’ report.

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the

case.

Fed. R. Evid. 702. The proponent of expert testimony bears the burden of showing the expert

testimony is admissible. Hampton v. Utah Dep't of Corr., 87 F.4th 1183, 1201 (10th Cir. 2023).

“First, the Court determines whether the expert is qualified by knowledge, skill, experience,

training or education to render the opinion.” Lippe v. Howard, 287 F. Supp. 3d 1271, 1277-78

(W.D. Okla. 2018). After determining an expert is qualified, “the district court must satisfy itself

that the testimony is both reliable and relevant, in that it will assist the trier of fact, before

permitting a jury to assess such testimony.” Schulenberg v. BNSF Ry. Co., 911 F.3d 1276, 1282

(10th Cir. 2018) (quoting United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en

banc)). “Expert testimony which does not relate to any issue in the case is not relevant and, ergo,

non-helpful.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993) (citation omitted).

Generally, a district court should focus on a proffered expert’s methodology and “not on the

conclusions that they generate.” Id. at 595. However, an expert's conclusions are not immune

from scrutiny: “A court may conclude that there is simply too great an analytical gap between the

data and the opinion proffered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). See also

Dodge v. Cotter Corp., 328 F.3d 1212, 1222–23 (10th Cir. 2003).

III. Analysis

The court currently has motions under advisement regarding five of Plaintiff’s experts, and

so the court will address each expert in the order they were presented at the Daubert hearing.

A. Trae Miller, III

Trae Miller, III, is a licensed professional engineer, attorney, and serves as the President

and Chief Engineer at Kiefner. He was retained by Plaintiff to opine on the state of the

Wynnewood Pipeline that runs across the property. In his Rule 26 report, Mr. Miller proposes a

main conclusion that the Wynnewood Pipeline is leaking refined petroleum products from at least

one seep in the Arbuckle Mountain uplift area. (Doc. 128.) In support of this conclusion, Mr.

Miller also proposes thirteen supporting opinions. Defendants assert that Mr. Miller’s opinions

are inherently speculative or otherwise “irrelevant to the core issues underlying the case.” (Doc.

390 at 2.)

As an initial consideration, the court finds that Mr. Miller is qualified to offer opinions on

the state of the Wynnewood pipeline. He has worked in engineering for over 25 years and has

been involved in numerous oil and gas pipeline projects, including designing and constructing

pipeline and transmission infrastructure. As such, his education, background, and professional

experience satisfies the requirements of Rule 702(a).

Moving to Mr. Miller’s opinions, he intends to offer thirteen supporting opinions to buttress

his primary conclusion that the Wynnewood pipeline is leaking on the property. While most of

his supporting opinions relate to attributes of the Wynnewood pipeline or Defendants’

maintenance of the pipeline, Mr. Miller also offers supporting opinions regarding federal

regulations and alleged violations of these regulations by Defendants. In Daubert, the Supreme

Court held that Rule 702 imposes a special obligation upon trial judges to “ensure that any and all

scientific testimony . . . is not only relevant, but reliable.” 509 U.S. at 589. For an expert opinion

to be relevant, it must “logically advance[] a material aspect of the case . . . [or] have a valid

scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397

F.3d 878, 884 n.2 (10th Cir. 2005). Irrelevant evidence which does not make a fact of consequence

more or less probable is inadmissible. See Fed. R. Evid. 402. At the hearing, Mr. Miller testified

about the pipeline attributes and Defendants’ internal line inspections, but the court did not allow

him to testify as to his opinions regarding federal regulations. His testimony convinces the court

that Mr. Miller possesses sufficient facts and data to offer his primary conclusion regarding at least

one seep on the property. However, the court now must address his supporting conclusions.

First, Mr. Miller’s supporting opinion 1 proffers that there are visible leaks at the Mt. Vica

Drive main line valve station. However, it is uncontested by the parties that the Mt. Vica Drive

main line valve station is not relevant to Plaintiff’s claim regarding a spill or leak from the

Wynnewood pipeline. (Doc. 419 at 85:15–86:7.)2 Rather, Mr. Miller appears to be using the Mt.

Vica Drive main line valve station as an example of how Defendants are failing to properly

maintain the pipeline. (Id.) Nevertheless, Tulip Springs, which contains the alleged refined

product contaminant discharge, is geographically and geologically separate from the Mt. Vica

Drive station. Indeed, Plaintiff conceded at the hearing that the minor drips at this valve station

have no real relevance to the issues remaining in the case. (Id.) Moreover, there is no connection

in Mr. Miller’s report between his observations at the Mt. Vica Drive main line valve station and

his conclusion that there is a seep on the Wynnewood Pipeline. Thus, this supporting conclusion

is not relevant. Furthermore, to the extent the evidence of minor drips at this valve station has any

relevance to a potential seep in the Wynnewood Pipeline, it is substantially outweighed by the risk

of unfair prejudice, confusing the issues, and misleading the jury due to Plaintiff potentially

seeking to introduce this evidence of a visible leak above the ground in a location remote from the

situs of the alleged harm as a substitute for actual evidence of an underground leak from the

pipeline, which is notably lacking in this case. See, e.g., McKenzie v. Hanover Ins. Co., 722 F.

Supp. 3d 1226, 1235 (E.D. Okla. 2024) (excluding an expert opinion as not relevant since it was

related to a claim that had been dismissed from the case). Defendants’ motion to exclude Mr.

2 There are two days of hearing transcripts at Docs. 419 and 420. For ease of notation, the court will cite to the page

and line number used by the court reporter in the transcripts rather than the page imposed by the ECF system.

Miller’s testimony is granted as to his supporting opinion 1.

Second, Mr. Miller offers opinions regarding alleged violations of the Code of Federal

Regulations (“C.F.R.”), including the Pipeline and Hazardous Materials Safety Administration

(PHMSA) rule, 49 C.F.R. Part 195, et seq. (Doc. 128 at 43, 56, opinions 8 and 13.) Defendants

move to exclude these opinions as irrelevant since the only surviving negligence per se claim is

alleged to be a violation of an Oklahoma statute and related regulation, and the C.F.R. and PHMSA

rules “do not make it more probable or not that Valero released or discharged refined petroleum

products on the Lazy S Ranch.” (Doc. 390 at 11.) In its remand order, the Tenth Circuit Court of

Appeals was very specific about the statutes and regulations on which Plaintiff relies for its

negligence per se claim. Lazy S Ranch Properties, LLC, 92 F.4th 1201-02. Upon reviewing

Plaintiff’s arguments, the Tenth Circuit concluded that only Okla. Stat. tit. 27A, § 2-6-105(A) and

Okla. Admin. Code § 165:10-7-5 were applicable to the negligence per se claim at issue here. Id.

at 1202-04. Accordingly, issues and opinions related to the C.F.R. and the PHMSA rules are not

relevant to the negligence per se claim. McKenzie, 722 F. Supp. 3d at 1235. Therefore, Mr. Miller

will not be allowed to testify as to his supporting opinion 8 regarding PHMSA rule 49 C.F.R. §

195.52(c), nor will he be allowed to testify to other PHMSA violation notices as a basis for the

negligence per se claim in his supporting opinion 13. To be clear, to the extent that Mr. Miller or

any other expert relies on the C.F.R. to offer information or provide a basis for some other opinion

not otherwise excluded, they are free to explain that connection. See Specht v. Jensen, 853 F.2d

805, 809–10 (10th Cir. 1988) (en banc) (holding that “a witness may refer to the law in expressing

an opinion . . . [but cannot] direct jury's understanding of the legal standards upon which their

verdict must be based”). However, neither Mr. Miller nor any other expert may testify about the

violation of the C.F.R. as a basis for any negligence per se liability. Thus, Defendants’ motion to

exclude Mr. Miller’s testimony is granted as to his supporting opinion 8 and also granted with

respect to supporting opinion 13 insofar as it relates to the negligence per se claim.

Third, Mr. Miller offers opinions related to Defendants’ internal policies (supporting

opinion 9), documentation (supporting opinion 10), and risk assessment (supporting opinion 11),

and Defendants argue that they should be excluded because they are irrelevant and not helpful for

the jury. The court agrees. These opinions do not address any issues at the heart of the litigation

and are therefore irrelevant. See, e.g., In re: Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig.,

No. 2327, 2016 WL 4536456, at *3 (S.D.W. Va. Aug. 30, 2016) (excluding the opinions of an

expert regarding medical complications when the complications were not at issue in the case).

Whether or not the Defendants properly categorized Lazy S Ranch in violation of a PHMSA rules

is not at issue in the remaining claims in this case. In the same way, Mr. Miller’s argument that

Defendants are falsifying documents or doing minimal documentation is not supported by

sufficient facts and is not helpful for a jury deciding whether the Wynnewood Pipeline is leaking.

Instead, it only serves to introduce unfounded prejudice. Finally, arguing that Defendants’ risk

assessments are understated and incomplete is intended to “create[] a negative inference that

VALERO is not managing risks effectively,” (Doc. 128 at 53) without showing any data that they

are negligent in the operation of the Wynnewood Pipeline. In sum, Defendants are not on trial for

being a bad operator, for paperwork violations, or for anything else that might cause environmental

or other harms in the future; rather, Defendants are facing claims that their pipeline is leaking now

and that they are legally responsible for the consequences of that leak. Therefore, Defendants’

motion to exclude Mr. Miller’s testimony is granted regarding supporting opinions 9, 10, and 11.

Mr. Miller is certainly allowed to point out any inconsistencies in Defendants’ documents when

offering his other opinions but will not be allowed to testify as to Defendants purposely obfuscating

or falsifying their records.

Given the above conclusions, the court holds that Mr. Miller will be allowed to offer his

primary opinion that the Wynnewood pipeline is leaking from at least one seep on the Lazy S

Ranch in addition to his supporting opinions not otherwise addressed above, even though he cannot

point to any one specific point on the pipeline which is leaking. Therefore, Defendants’ motion is

granted as to Mr. Miller’s supporting opinions 1, 8, 9, 10, 11, and parts of 13, but otherwise denied.

B. Dr. J. Berton Fisher

Dr. J. Berton Fisher was retained by Plaintiff to offer opinions regarding hydrocarbon

contamination of the Arbuckle-Simpson Aquifer and offer opinions connecting the hydrocarbons

discovered both at Tulip Springs and elsewhere on the Lazy S Ranch to the Wynnewood Pipeline.

(Doc 131.) Dr. Fisher plans to offer his conclusions that the Wynnewood Pipeline is the cause of

this contamination based on the water, soil, and air samples which he obtained from the property

to test the level of hydrocarbons. Defendant maintains that Dr. Fisher lacks sufficient data to reach

his conclusions and that he has failed to adequately account for alternative sources of hydrocarbon

contamination at the Lazy S Ranch. (Doc. 393.) It is certainly clear that Dr. Fisher has the

necessary qualifications to offer his opinions, as he obtained a PhD in Earth Sciences from Case

Western Reserve University and has over thirty years of relevant experience in geochemistry.

(Doc. 200 at 116-157.) Moreover, he is an adjunct Professor at Oklahoma State University

teaching hydrogeology and site assessment, and he has dozens of relevant publications and

presentations on these and similar geochemistry topics. However, he cannot conclusively show

that the Wynnewood Pipeline is the origin of the hydrocarbons found in some of his samples, nor

does he have any test data that shows the Arbuckle-Simpson Aquifer is actually contaminated.

Thus, the court is left to evaluate his conclusions considering the data presented at the hearing.

First, the court finds that Dr. Fisher has repudiated his samples obtained using Bio-Sep

beads in Bio-Trap Samplers. At the Daubert hearing, he openly stated that he questioned their

reliability, even though he used them as one of the two sampling methods for his water samples

(the other being polypropylene cloth hydrocarbon collectors). (See, e.g., Doc. 419 at 204:22–

205:20; 210:2–9.) Therefore, he will not be allowed to present any data or conclusions which rely

on the Bio-Trap sampling methods. However, the court is persuaded that the use of polypropylene

cloth hydrocarbon collectors is sufficiently reliable for Dr. Fisher to use the data obtained from

them. Even though Defendants questioned the reliability of the polypropylene cloth hydrocarbon

collectors and presented their potential to taint the resulting gas chromatograms, the court is

persuaded that there is enough difference in the gas chromatograms between the control and the

field samples to satisfy Rule 702’s reliability standards and allow the jury to consider this evidence

and that this information could also be helpful to the jury.

Second, the soil, water, and air samples obtained by Dr. Fisher are suggestive of

hydrocarbon presence in the karst geology on the Lazy S Ranch; however, these samples fail to

show contamination of the Arbuckle-Simpson Aquifer. Dr. Fisher did not take any samples from

the Arbuckle-Simpson Aquifer to show that it has actually been contaminated, but rather assumes

the aquifer is contaminated given the direction of groundwater flow, local geology, and various

samples taken from springs at the property and from a monitoring well drilled near the Blue Knight

Pipeline. This assumption, and the evidentiary support for it, merits further discussion.

At the Daubert hearing, the court questioned Dr. Fisher at some length on matters related

to whether any testing was done to validate the assumption that refined petroleum products are

reaching the Arbuckle-Simpson Aquifer and, more importantly, to validate the modeling of the

hypothetical benzene plume that Dr. Fisher advances and on which other experts rely (some

heavily) in support of various theories of damages. (Doc. 419 at 236:6–249:13.) In response to

the court’s questions, Dr. Fisher generally maintained the view that, because the geologic

formations that compose the Arbuckle-Simpson Aquifer are highly tilted on the Lazy S Ranch, the

aquifer includes all the soils and strata on the relevant portion of the property, all the way to the

surface. (Id. at 237:15–17; 240:24–241:16; 249:16–250:2.) Consequently, he argued that any soil

contamination and any contamination in the springs or elsewhere constitutes contamination of the

Arbuckle-Simpson Aquifer. (Id.) While this proposition may be true in a broad, theoretical sense,

it is not helpful here because Plaintiff has defined substantial material distinctions between the

near-surface soils, the intermittent springs, the consolidated strata between the surface and the

saturated portion of the aquifer, and the saturated portion of the aquifer itself (which is generally

always filled with water). For instance, Plaintiff has made common use of a conceptual model that

shows the pipeline, Tulip Springs, perched water, and the saturated portions of the Arbuckle-

Simpson, among many other things, in an effort to explain the complex behavior of subsurface

fluids in the area of the property. (Doc. 143-1 at 10 [Fisher Report Ex. 23]; Doc 144-1 at 1 [Fisher

Report Ex. 25].) That model clearly shows the leaking pipeline with contaminants migrating

downward through cracks and channels in the underlying rock, then reaching a layer of water that

connects to Tulip Springs, and then a further descent to the saturated region of the aquifer.

Dr. Fisher’s analysis draws clear distinctions between the behavior of alleged contaminants

above the saturated part of the aquifer and the behavior of those contaminants once they reach the

water table. For example, above the water table, he suggests that these petroleum fluids may pool

and build up until a storm event washes them out of their pools and transports those fluids to outlets

like Tulip Springs or further down toward the water table. By contrast, once those fluids reach the

water table, Dr. Fisher purports to model their transport and dispersion using his Domenico (1987)

transport and reaction groundwater computer model. In fact, Dr. Fisher admits that the Domenico

model is “unsuitable for modeling” the contaminants above the saturated portion of the aquifer

because “[t]he Domenico model, like many models, is really only applicable to what's called a

fully saturated circumstance, that is, all the pore space or all the permeability is occupied by water.”

(Doc. 419 at 242:5–22.) This is a critical distinction because Dr. MacBeth, among others, relies

almost exclusively on Dr. Fisher’s modeling to support her conclusions that a multi-million-dollar

pump-and-treat remediation program is necessary to restore the saturated part of the Arbuckle-

Simpson Aquifer to its pre-leak condition. Accordingly, when the court questioned Dr. Fisher on

whether any testing or sampling had been done to confirm that the Arbuckle-Simpson itself was

contaminated, it was not sufficient that he merely pointed out that evidence of soil and spring water

contamination showed the aquifer was contaminated. (Id. at 249:16–250:2.) Instead, as the court

explained to Dr. Fisher at the hearing, the point of that inquiry was to determine whether any

testing had been done to validate both the inputs being given to the Domenico model and the results

yielded by the Domenico model with respect to the saturated part of the aquifer and alleged

contaminant plumes contained therein. Spread over several pages of the transcript, the discussion

proceeded, in relevant part, as follows:

THE COURT: So is there going to be any other evidence3 in the case that

gives quantitative sampling of the location and concentrations of hydrocarbons in

the Arbuckle-Simpson aquifer? Mr. Page?

MR. PAGE: Your Honor, my reading of Dr. Fisher's report, and he can

correct me, is that the aquifer starts at the surface, because of this anticline, um,

geology, where the sediment beds move up on their side.

. . . .

MR. PAGE: And so if there is a spill at the surface, it's going to eventually

work its way into the main aquifer. Dr. Fisher, am I correct or wrong on that?

THE WITNESS: That's correct.

3 This reference to “other evidence” is in the context of having just discussed the single borehole, out of a number of

such boreholes, that produced any detectable concentration of contaminants in the water underlying the property. This

borehole and testing evidence is discussed in more detail later in this order.

(Doc 419 at 240:19–241:9.) The court later went on to ask:

THE COURT: And so what is the actual evidentiary sampling data that

allows you to provide your inputs to the model?

You have to have -- as I understand it I think, you have to have some starting

point where you tell the model they have -- it has a certain size or concentration, or

some measure of the hydrocarbons, whether that is treated as a point source, or

some shape or volume, and then it takes these other various inputs and somehow

calculates how far the plume reaches and seems rather important, given that you're

finding that plume only goes 600 and something feet, so it's one of the things I'm

gleaning from that is that this -- to the extent there is contamination in this aquifer,

it's not going miles and miles it's, you know, 600 feet, that's less than a fifth of a

mile, still on the ranch. And we're asking the jury to do a lot with that information

so what's the data that supports the inputs to the model?

(Id. at 245:3–21.) Dr. Fisher’s answer to this question spanned over a page of the hearing

transcript and focused on assumptions about the amount of benzene released into the aquifer rather

than describing any testing or measurements to actually confirm the amounts or concentrations of

contaminants reaching the aquifer in the first instance. Sensing that Dr. Fisher either

misapprehended the focus of the court’s question regarding “actual evidentiary sampling data that

allows you to provide your inputs to the model” (Id. at 245:4–5) or was hoping to avoid that part

of the question, the court attempted to re-focus Dr. Fisher’s attention on the heart of the inquiry:

THE COURT: And do we have any in situ measurements of contaminate

[sic] concentration levels in the aquifer that validate the information that we're

feeding to this model?

THE WITNESS: Only our hydraulic conductivity and gradient.

. . . .

THE COURT: So we don't have any measurements of actual contamination

in the aquifer within this calculated plume that we go down and we say, Oh, we

took a sample, the model says X, the sample says Y, and they're pretty doggone

close, so the model must be giving us a good picture of what's going on down there.

THE WITNESS: No, we would have to know exactly where the plume is,

and as you've indicated, it is really small so trying to find it by drilling would be a

stringent task.

THE COURT: . . . Dr. Macbeth is going to -- wants to tell a jury it is going

to take $44 million to drill wells and clean that thing up. If we're going to do that,

why -- if we think we can hit [the contamination plumes] with those wells to clean

it up, why can't we hit it with a test well or two to validate the data that we're going

to ask a jury to rely on for a $40 million damage model?

THE WITNESS: I don't have an answer for that, Your Honor.

(Doc. 247:1–248:4.) Thus, while Plaintiff maintains that it has proof of aquifer contamination in

the broadest sense of that term (namely evidence of soil contamination and contaminants in some

of the springs on the ranch), Plaintiff has no actual proof whatsoever that the computer-modeled

contamination plumes generated by Dr. Fisher’s Domenico model actually exist, where the plumes

are located, how large they are, or even which contaminants they contain and in what

concentrations. That’s what the court means when it says that Plaintiff has no evidence to show

that the Arbuckle-Simpson Aquifer is actually contaminated.

Indeed, the only efforts that Plaintiff appears to have made to obtain this crucial evidence

is sampling done on four of the boreholes Plaintiff drilled on the ranch between the Wynnewood

Pipeline and Tulip Springs. (Doc. 131 at 33–34; Doc. 143-1 at 6 [Fisher Report Ex. 19].)

Plaintiff’s evidence indicates that water samples were taken from boreholes numbered 01, 19, 10,

and 16. (Doc. 161 [Fisher Report Summary Exhibit A].) These samples were tested for benzene,

toluene, ethylbenzene, xylene, total petroleum hydrocarbons – gasoline range organics, and total

petroleum hydrocarbons – diesel range organics. (Id.) The samples showed no detectable

contaminants except for a trace amount of toluene in a single borehole, DH-19. (Id.) The actual

reported value of toluene in the one positive sample was reported as 2.03 micrograms per liter,

which is almost 500 times lower than the EPA limit for toluene in water of 1 milligram per liter

(or 1000 micrograms per liter). See 40 C.F.R. § 141.50 (1994). Moreover, this borehole is located

to the west of the Wynnewood Pipeline, immediately adjacent to the former Blue Knight Pipeline,

and almost half the distance between the Wynnewood Pipeline and Tulip Springs. (Doc. 143-1 at

6 [Fisher Report Ex. 19].) This is a significant fact because Dr. Fisher explained that the plumes

would form in the general direction of natural groundwater flow. (Doc. 131 at 38–39; Doc. 144-

1 at 1 [Fisher Report Ex. 25].) As discussed at the hearing, Exhibit 15 from Dr. Fisher’s report

shows the prevailing directions of groundwater flow during non-storm events on the Lazy S Ranch.

(Doc. 419 at 149:16–23.)4 It is clear from Exhibit 15 that prevailing groundwater flow would not

allow any plume resulting from leakage from the Wynnewood Pipeline to establish where borehole

DH-19 was located. (Doc. 142-1 at 16 [Fisher Report Ex. 15].) Accordingly, Plaintiff has failed

to produce a shred of evidence to validate Dr. Fisher’s conclusions that the Domenico model’s

contamination plumes are sufficiently reliable that Dr. MacBeth can use them to ask the jury for a

$40 million groundwater remediation program. In fact, it appears that Plaintiff did not even try to

obtain evidence to validate the model.

The court is somewhat stupefied by this glaring evidentiary gap but does understand how

the course of the litigation led to this situation. The lion’s share of Plaintiff’s $80 million damage

model is based on contamination of the Arbuckle-Simpson Aquifer. Sampling and testing can be

expensive. Defendants certainly do not want to bear the expense of testing because Plaintiff bears

the burden of proof, and Defendants’ testing of the aquifer could substantiate Plaintiff’s claims of

contamination, thus snatching defeat from the jaws of victory. Similarly, Plaintiff doesn’t want to

pay for expensive testing, especially considering the risk that it might show a lack of

contamination, thereby undermining the bulk of Plaintiff’s damage claims. Thus, we have the

situation where neither side wants to take the risk of bad news from groundwater sampling.

Defendants have decided to simply rely on Plaintiff’s failure to test the aquifer, while Plaintiff has

decided to argue that common sense is enough for the jury to conclude that contamination has

reached the aquifer in quantities sufficient to support Plaintiff’s assumptions. Whatever Plaintiff’s

4 Hearing Exhibit V20 was identified as Exhibit 15 from Dr. Fisher’s expert report. (Doc. 419 at 146:23–24.)

motive for the current evidentiary gap, this lack of data on the Arbuckle-Simpson Aquifer itself

means that any opinion offered on its contamination is inherently speculative. Mitchell v. Gencorp

Inc., 165 F.3d 778, 781 (10th Cir. 1999) (“Absent supporting scientific data, [an expert’s]

conclusions are little more than guesswork. Guesses, even if educated, are insufficient [to draw a

conclusion]”); Belisle v. BNSF Ry. Co., No. CIV. 08-2087-EFM, 2010 WL 1424344, at *10 (D.

Kan. Apr. 5, 2010) (holding an expert opinion is speculative where the expert “[had not] provided

any other foundation for [his] opinion”). Accordingly, Dr. Fisher will not be allowed to opine that

the aquifer is contaminated by hydrocarbons because that opinion is not based on sufficient facts

and data, and he certainly may not attempt to quantify that conjecture with assumptions regarding

leak rates and all the other data inputs necessary for any computer modeling on the alleged

contamination plumes within the aquifer. This includes offering his opinions regarding the

Domenico analytical transport and reaction groundwater plume model. However, given the soil,

water, and air samples that Dr. Fisher directly obtained from the Lazy S Ranch, Dr. Fisher will be

allowed to opine about the soil contamination on the property, the contamination in the springs,

and the air samples that he obtained, even going so far as to render an opinion that a leak in the

Wynnewood Pipeline is the source of the hydrocarbons.

Thus, Defendants’ motion to exclude Dr. Fisher’s testimony is granted regarding data

based off the Bio-Trap Samplers and granted as to his conclusion that the Arbuckle-Simpson

Aquifer is contaminated, but otherwise denied.

C. Dr. Kenneth J. Ede

Dr. Kenneth J. Ede is the director of the professional science masters’ program in

environmental science at Oklahoma State University and additionally has worked for both the

government and the private sector in forensic and general chemistry. He has been retained by

Plaintiff to offer causation conclusions that the Wynnewood Pipeline is the source of hydrocarbon

contamination at the Lazy S Ranch and that the weathering of these hydrocarbons on the property

are consistent with discharge from the Wynnewood Pipeline. (Doc. 130.) Defendants contend

that Dr. Ede’s opinions are unreliable and inadmissible because they are not based on sufficient

facts or data. (Doc. 392.) As an initial consideration, Dr. Ede has the necessary qualifications to

offer his conclusions. Dr. Ede has decades of experience in forensic and general chemistry,

experience with gas chromatography at MET Labs, and experience as an environmental project

manager for American Airlines in charge of remediating several contaminated sites.

However, apart from visiting the Lazy S Ranch, Dr. Ede relies on the sampling and gas

chromatograms obtained by Dr. Fisher as the basis for his conclusion. Hence, the same limitations

that apply to Dr. Fisher will apply to Dr. Ede. Given that he has no data on the Arbuckle-Simpson

Aquifer, he will not be allowed to opine that it is contaminated nor can he testify about a

hypothetical contamination plume due to lack of sufficient data and methods. Similarly, he will

not be allowed to offer any opinions based on data obtained from Bio-Trap Samplers.5 As with

Dr. Fisher, Dr. Ede can certainly testify about the contamination in the springs and the air samples,

including offering his opinion that they are derived from the Wynnewood Pipeline, if he complies

with the limits set by this court.

Regarding Dr. Ede’s opinions on the weathering of the hydrocarbons, the question of

weathering and the age of the hydrocarbons presents an issue of fact for the jury to decide, and Dr.

Ede’s experience and opinion could be helpful to the jury. However, in Dr. Ede’s rebuttal report

(Doc. 201) and at the Daubert hearing in this case, Dr. Ede offered an opinion that a single rain

event at Lazy S Ranch could release up to 54 pounds of the pollutant benzene into the air from

5 Dr. Ede’s report does not specifically state which water samples he uses as the basis of his opinion, as he simply

refers to all water samples when he opines on the gas chromatograms.

Tulip Springs. This opinion is purely conjecture. Apart from Dr. Ede and others smelling what

they allege to be benzene at the mouth of Tulip Springs after a rain event, there is no data to support

Dr. Ede’s conclusion as to a specific amount of benzene being released at Tulip Springs or on the

Lazy S Ranch. He can certainly opine as to what he and others smelled at Tulip Springs, identify

it as benzene, and offer an opinion as to its cause, but the specific formula offered in his rebuttal

report that concludes 54 pounds of the pollutant benzene is being released is excluded as it contains

too great an analytical gap. Norris, 397 F.3d at 886 (“when the conclusion simply does not follow

from the data, a district court is free to determine that an impermissible analytical gap exists

between premises and conclusion”); Ho v. Michelin N. Am., Inc., 520 F. App'x 658, 666 (10th Cir.

2013) (affirming the exclusion of an expert opinion when there was no link to his underlying data);

Combs v. Shelter Mut. Ins. Co., No. 05-CV-474-JHP, 2007 WL 4748227, at *3 (E.D. Okla. Feb.

16, 2007) (excluding an expert opinion where the “inferences and assertions . . . are not supported

by appropriate validation”).

Therefore, Defendant’s motion to exclude Dr. Ede’s testimony is granted regarding any

conclusions from data based on water samples taken using the Bio-Trap Samplers, granted as to

his conclusion that the Arbuckle-Simpson Aquifer is contaminated, and granted as to his formula

calculating the amount of benzene coming from Tulip Springs, but otherwise denied.

D. Dr. Kevin J. Boyle

Dr. Kevin J. Boyle is the founding director of the Blackwood Program in real estate and a

professor of agricultural and applied economics at Virginia Tech University, who has been retained

by Plaintiff to calculate the value of hypothetical lost water sales that Lazy S Ranch would have

extracted from the Arbuckle-Simpson Aquifer. (Doc. 129.) Defendants argue that he should be

excluded from testifying about the aquifer contamination because he is merely parroting the

conclusions of other experts and because his lost water sales model lacks sufficient facts and data

to pass Rule 702 scrutiny. After the benefit of a hearing, the court agrees. It is true that Dr. Boyle

has necessary credentials and qualifications to offer his opinions. However, the entirety of his

water sales damage model is based off one datum point, namely a supposedly comparable water

sale between Wingard Water Corporation and Rural Water District No. 8 of Pontotoc County

(“Wingard Water Sale”). Although the Roos family allegedly purchased the property as a source

of marketable potable groundwater, they have never sold any water to any municipality or other

third party.

Dr. Boyle proposes to testify that leaks from the Wynnewood Pipeline have cost Plaintiff

more than $22 million in lost water sales. However, he bases this opinion on a multitude of

questionable assumptions and minimal rigorous analysis. The court begins with the engineering

and design flaws, and then proceeds to gaps in the economic analysis.

First, Dr. Boyle begins with an assumption that the Lazy S Ranch can produce and deliver

to a hypothetical buyer the maximum volume of fresh water that may be legally produced and sold

from the ranch. (Doc. 420 at 421:3–15.) This is no small assumption. Under the guidelines set

by the Oklahoma Water Resources Board, the volume of water that can be extracted from the

Arbuckle-Simpson aquifer is set at 0.2 acre-feet per year. (Doc. 129 at 6.) The northern part of

the ranch is underlain by the Arbuckle-Simpson Aquifer; however, the Arbuckle-Simpson does

not extend to the southern part of the ranch. This distinction was largely ignored by the parties at

the Daubert hearing, with most of the geologic exhibits admitted into evidence indicating that the

southern part of the ranch was underlain by shale formations (rather than karst). The admitted

exhibits and testimony provided no indication as to whether the formations underlying the southern

part of the ranch had the hydrologic and geologic properties sufficient to operate as an aquifer or

other source of salable groundwater. In that sense, Dr. Boyle was an outlier because he was a lone

voice opining that the soils under the southern part of the ranch contained what he identified as a

2,067.21 acre “Unnamed Aquifer.” (Id. at 4. See also Doc. 420 at 443:23–447:17.)6 That position

was even more remarkable because, of the $22 million in lost water sales identified by Dr. Boyle,

$18.7 million came from water to be extracted from this Unnamed Aquifer rather than the

Arbuckle-Simpson. (Doc 129 at 12.) The main driver for this difference was that Oklahoma

restricts water production from the Arbuckle-Simpson to 0.2 acre-feet per year, but the Unknown

Aquifer in the shale formations would be subject to the general limit under Oklahoma law of 2

acre-feet of water per year, which is the highest amount allowed under Oklahoma law for

groundwater extraction in the absence of a maximum yield study. (Id. at 5–6.).

This is where the lack of technical rigor in Dr. Boyle’s analysis begins to have an effect.

Had Dr. Boyle performed any testing on the Lazy S Ranch to validate his assumptions, then the

court would have had some basis to conclude that the property could produce the volumes of water

that Dr. Boyle assumes it can. But no testing was done. No one drilled any test wells to determine

how much water could be produced from either the Arbuckle-Simpson or the Unnamed Aquifer.

Nor was any effort made to present data from other water wells in the area that might have been

arguably representative of the sort of production that could be achieved from the Lazy S Ranch.

Surely there was such data, at least for such a large and well-studied source as the Arbuckle-

Simpson; but Dr. Boyle presented no such evidence to the court.7 Moreover, with the bulk of the

6 At the second day of the hearing on Feb. 6, 2025, Plaintiff’s counsel argued that Dr. Geoffrey Canty, an interested

party, would testify as to the existence and properties of the Unnamed Aquifer. (Doc. 420 at 445:19–446:11.)

However, the court heard no testimony at the hearing from Dr. Canty, Dr. Canty has not filed any Rule 26 report in

the present case, and Dr. Boyle did not rely on Dr. Canty’s deposition testimony nor have any discussion with him in

formulating his conclusions. (Id. at 446:15–447:17; 449:6-16.)

7 Dr. Fisher’s report presents some general characteristics of 19 groundwater wells on the Arbuckle-Simpson within

6.5 miles of the property, including stating “recorded water yields range widely between < 1.0 to 50 gallons per minute

damages for lost water sales coming from the so-called Unnamed Aquifer, testing of that formation

was even more important. And while it is not beyond belief that groundwater might be producible

in some volumes from some parts of the southern portion of the ranch, it was Plaintiff’s burden to

prove that. If Plaintiff did not want to drill test wells to prove up that theory, it should have at least

pointed to some scientific studies, books, papers, or similar sources that documented the presence

of producible groundwater from this Unnamed Aquifer, as well as the rates at which it might

reasonably be produced. Plaintiff did neither, nor did it offer the court anything other than the ipse

dixit of Dr. Boyle on this critical topic. Smith v. Sears Roebuck & Co., 232 F. App'x 780, 783

(10th Cir. 2007) (citing Gen. Elec. v. Joiner, 522 U.S. 136, 146 (1997)) (holding an expert’s

conclusion must be based on sufficient facts and data and cannot be “connected to the existing data

only by the ipse dixit of the expert”).

Moreover, evidence regarding the potential productivity of water wells on the ranch is

indispensable to the related task of determining the capital and operating costs for the wells that

Dr. Boyle assumed in his analysis. Each water well comes at a capital cost for its drilling,

completion, and equipping; and each such well comes with ongoing operating costs to pay for

standard equipment maintenance as well as electricity to pump the wells. Productivity data for

each of the two alleged aquifers would aid in determining whether the Lazy S Ranch would need

(gpm) with an average water yield of 16 gpm.” (Doc. 131 at 21.) He then contends that given the karst nature of the

Lazy S Ranch above the Arbuckle-Simpson “wells completed [on the property] could penetrate a significant thickness

of the karst aquifer and have produce [sic] high water yields” based on a report by Roy W. Fairchild et al., Hydrology

of the Arbuckle Mountains Area, South-Central Oklahoma, OKLA. GEOLOGICAL SURV., CIRCULAR 91 (1990),

http://ogs.ou.edu/docs/circulars/C91.pdf. (Id.) However, none of the data which Dr. Fisher reports regarding water

production at the property is used by Dr. Boyle in his model, and Dr. Fisher provides no additional data on the

Unnamed Aquifer. While Dr. Boyle could have plausibly relied on Dr. Fisher’s report for water production levels

extracted from the Arbuckle-Simpson, he assumed that the ranch could extract 818 acre-feet per year from the

Arbuckle-Simpson without any reference to Dr. Fisher’s report, and provided no justification for his assumption that

the Unnamed Aquifer could produce 4,116 acre-feet per year. (Doc. 129 at 6.) Although an extraction of 818 acre-

feet of water per year from the Arbuckle-Simpson might be plausible given Dr. Fisher’s analysis, the lack of Dr.

Boyle’s reference to this data combined with other issues highlighted below leads the court to conclude that Dr.

Boyle’s testimony lacks the sufficient basis to pass muster under Rule 702.

two wells or two hundred wells to achieve the maximum volume of water production under

Oklahoma law. The economic realities of water well production costs necessarily shape Plaintiff’s

damages in this case, and the damages could be affected greatly by the answer to such questions.

See, e.g., Anderson Living Tr. v. Energen Res. Corp., 886 F.3d 826, 838 n.14 (10th Cir. 2018)

(noting that in oil and gas drilling “production costs . . . must generally be borne by the well

operator”). Instead, Dr. Boyle chose to ignore these costs. He provided no evidence of the

productivity of the aquifers, and did not even consider the costs to drill, complete, operate, and

maintain however many wells would be required to achieve his assumed production rate. In a

sense, he negated the importance of knowing how much water one well could produce from the

aquifers on the property because his model assumed a fixed, zero cost for extracting the

groundwater to simplify the economic analysis. He justified this assumption by also assuming a

municipal buyer of the water would pay for the drilling and maintenance of any well drilled on the

property. (Doc. 420 at 466:18–470:8.) Unfortunately, that approach is divorced from reality.

Indeed, the Wingard Water Sale contract that Dr. Boyle relies upon says nothing about the cost of

drilling, maintenance, and operation of the water wells relevant to that contract. (Doc. 128 at 15–

16.) Instead, the contract says that the property owner maintains ownership of the wells and that

the buyer is responsible for infrastructure and water meters downstream, but it is silent as to the

costs of the wells themselves. Moreover, there was no testimony to establish any industry custom

or practice that a buyer frequently or always pays the costs associated with drilling, maintaining,

and operating water wells in a transaction like that posited by Dr. Boyle. Accordingly, Dr. Boyle’s

assumption that the buyer will bear all costs lacks any evidentiary basis and is accordingly rejected.

Second, Dr. Boyle failed to analyze the market for his assumed potable water production

from the property. As an initial matter, he assumed that some unknown purchaser in or around

Carter County where the property is located would buy the maximum volume of water that Lazy

S Ranch could produce under the law. (Doc. 129 at 8.) However, Dr. Boyle failed to identify who

that purchaser might be. At the hearing, he testified that the Roos family had been in conversations

to potentially sell water to either the town of Ardmore or the town of Ada (Doc. 420 at 435:17-

436:9), and he also testified that, to his understanding, there is an increasing number of buyers in

the region. (Doc. 420 at 472:20–475:23.) However, Dr. Boyle never talked to any of these entities

nor made any effort to explore whether they had any need for the additional volumes that Lazy S

Ranch hoped to produce.8 It is worth noting that the Lazy S Ranch is situated in a fairly rural area

with no indication of a robust potable water market. Indeed, there is no way of knowing whether

such sales would have ever occurred. Yet, Dr. Boyle assumes that, but for the alleged leak from

the Wynnewood Pipeline, a local municipality or other buyer would buy the entire theoretical

production stream of potable water from the property.

And that brings us to the next great analytical leap in Dr. Boyle’s market analysis. Dr.

Boyle not only assumes that a theoretical buyer would purchase all the water that Lazy S could

produce absent a pipeline leak, but also assumes that the same theoretical buyer would refuse to

purchase any water if the pipeline was leaking. While that assumption may not be shocking in the

abstract, it strains credulity when one notes that the water samples taken from the ranch were all

either below the laboratory’s reporting limits for the contaminants of concern or generally orders

of magnitude below the limits set for drinking water contaminants by the Oklahoma Corporation

Commission (OCC), the Oklahoma Department of Environmental Quality (ODEQ), the Oklahoma

8 Even assuming that there is an increasing market for potable water in the area around the property, there is no

evidence in the record that current demand for water is not being met. Accordingly, any water sales from the Lazy S

Ranch would potentially displace other water sales from other sources. Dr. Boyle makes no effort to address this

market reality or assess its impact on the price that Lazy S Ranch would have to charge to draw those hypothetical

purchasers away from their current source of water supply.

Water Resources Board (OWRB), and the United States Environmental Protection Agency (EPA).

See Lazy S Ranch Props., LLC, 92 F.4th at 1208–09 (Philips, J., dissenting) (providing three tables

showing the maximum concentration of benzene, toluene, ethylbenzene, xylenes, and total

petroleum hydrocarbons are either below the laboratory’s reporting limits or well under (generally

by orders of magnitude) the applicable regulatory limits). Moreover, it bears repeating once again

that no samples were taken from either the Arbuckle-Simpson or the Unnamed Aquifer. Thus, Dr.

Boyle’s opinion assumes that a buyer would reject water that, according to the testing we have on

the record, is well within applicable drinking water standards solely on the basis that it is produced

from an allegedly contaminated aquifer when there is no evidence that the aquifer is actually

contaminated. See supra III.B, and III.C (prohibiting Dr. Fisher and Dr. Ede from testifying about

aquifer contamination due to lack of evidence to support that opinion).

Third, Dr. Boyle did not conduct a market analysis as to what price potable water might

fetch except for his reliance on a single datum point from a 2015 Wingard Water Sale in Pontotoc

County, Oklahoma. Although this Wingard Water Sale may provide relevant information, using

this single datum point alone to project water sales for a property that has never sold a single drop

of water is inherently speculative, and does not pass the threshold for reliability under Rule 702.

An expert’s conclusion must be based on sufficient facts and data and cannot be “connected to the

existing data only by the ipse dixit of the expert.” Smith, 232 F. App'x at 783.

Even accepting this Wingard Water Sale contract as a valid basis for calculating lost water

sales at the Lazy S Ranch, the Wingard Water Sale contract does not guarantee that the Wingard

Water Corporation will be able to sell the maximum volume of water permitted by law. Instead,

paragraph eleven of the agreement merely provides Rural Water District No. 8 of Pontotoc County

the right of first refusal to purchase water. (Doc. 129 at 16.) Thus, there was no guarantee that

Wingard was going to sell, or that the water district was going to buy, any water under the Wingard

Water Sale contract, much less the maximum volume that property could lawfully produce. On

top of that, the Lazy S Ranch withdrew its application for a water sale permit, and that is an

important factual difference between the ability of Wingard Water Corporation to sell its water

and the ability of Lazy S Ranch to sell its water. Thus, even construing this singular water sales

datum point as charitably as possible does not show that Lazy S Ranch has suffered damages for

the loss of the maximum volume of water sales permissible under the law.

In sum, Dr. Boyle’s opinion that the alleged leak from the Wynnewood Pipeline has cost

Plaintiff over $22 million in lost water sales is based on one faulty assumption after another.

Rather than render an opinion based on any sort of rigorous analysis, this opinion relies on

conjecture, speculation, and other opinions already excluded hereunder, including specifically that

any aquifer underlying the ranch is contaminated. Given the above conclusions, Dr. Boyle’s

opinion is unreliable, almost totally lacking in supporting facts and data, and unhelpful to the jury.

Indeed, the jury does not need an expert to help it speculate on damages. Therefore, Defendants’

motion to exclude the testimony of Dr. Kevin J. Boyle is granted.

E. Dr. Tamzen Macbeth

Dr. Tamzen Macbeth has been retained by Plaintiffs to provide a damages calculation for

the investigation and cleanup costs regarding the allegedly contaminated soil, groundwater,

springs, and cattle supply wells, in addition to the cost of pipeline replacement. (Doc. 132.)

Defendants contend that Dr. Macbeth’s opinion is imprecise in its conclusions and that her

damages model is exorbitant and conceptual. (Doc. 391.)

As with the other experts, the court concludes as a threshold matter that Dr. Macbeth is

qualified to offer her opinions. She obtained her doctorate in Civil and Environmental Engineering

from the University of Idaho, and she has published numerous peer-reviewed papers in the field

of contaminated site remediation along with dozens of conference presentations. In her current

role as senior vice president and international remediation practice leader at CDM Smith, she has

“served as the principal investigator, manager, or lead engineer for over 100 government, private

and international contaminated sites undergoing cleanup of soils, sediments, surface water or

groundwater.” (Doc. 132 at 9.) This education and experience provides her with sufficient

experience to offer her conclusions on remediation at the Lazy S Ranch.

Before proceeding to the rest of the analysis, the court pauses to note that Dr. Macbeth was

a good witness. She presented as competent, credible, and likeable. The critique of her

conclusions that follows in this order is not so much a disapproval of her work and methods, but

rather it is the natural consequence of the lack of investigation that preceded her work. As

previously noted, Plaintiff’s investigation of the scope of contamination on the ranch has left much

to be desired. Dr. MacBeth was forced to work with that limited data set and make a host of

assumptions about the scope of the project. As explained, below, that is not unusual at the early

stages of a remediation project. However, it becomes problematic when a plaintiff wants to stop

there and take the evidence from the incipient stage of a pollution investigation and then use that

limited evidence as the primary basis for meeting its burden of proof in a civil damages case. That

is the essence of the problem here.

Hence, the court is concerned with the inherently speculative nature of Dr. Macbeth’s

damages model. Dr. Macbeth’s expert report states, and she confirmed with her testimony at the

hearing, that her estimates for the costs to remediate Lazy S Ranch:

are considered order of magnitude and are regarded as Class 5 (Screening or

Concept Study) with an accuracy of -50%/+100% of actual cost according to the

ASTM International Standard Classification for Cost Estimate Classification

System (Designation E 2516-11 [2019]). The information presented in these cost

estimates is based on the best available information regarding the anticipated scope

of the cleanup plan.

(Doc. 132 at 8-9) (emphasis added). She further describes that:

[t]he levels of detail employed in making these estimates are conceptual but are

considered appropriate as a conceptual cleanup cost; however, they are not meant

to be design-level estimates used for budgeting purposes.

(Id. at 24) (emphasis added). She further elaborates on the conceptual nature of her cost estimates

as follows:

Conceptual cost estimates are typically completed with minimal scope definition.

The cost estimate was prepared for the cleanup approach at the site and to provide

an order of magnitude bracketing of budgetary costs. Costs presented for the

conceptual cleanup approach is considered an order of magnitude and are regarded

as Class 5 (Screening or Concept Study) with an accuracy range of -50%/+100%

of actual cost according to the ASTM International Standard Classification for Cost

Estimate Classification System (Designation E 2516-11 [2019]). The information

presented in these cost estimates is based on the best available information

regarding the anticipated scope of the conceptual cleanup approach. Changes in

the cost elements are likely to occur because of new information and data collected

during a pre-design investigation.

(Id. at 26) (emphasis added).

ASTM International Standard Classification for Cost Estimate Classification System

(Designation E 2516-11) (“ASTM E 2516-11”) purports to provide “a generic classification

system for cost estimates and provides guidelines for applying the classification to cost estimates.”

ASTM E 2516-11 § 1.1. This standard establishes five classes of cost estimates based primarily

on the degree of project definition. Id. § 5.1, 5.3. “A Class 5 estimate is based upon the lowest

degree of project definition, and a Class 1 estimate is closest to full project definition and

maturity.” Id. § 5.4. The standard is not industry specific, but rather “may be applied generically

to just about any particular industry.” Id. § 5.6.

Consistent with Dr. Macbeth’s expert report and her explanation at the hearing, a Class 5

estimate is generally considered useful for “screening or feasibility” and is utilized where the

degree of project definition is only around 0% to 2% complete. Id. at Table 1; see also Doc. 420

at 510:5–511:25. The accuracy of the costs projected in a Class 5 estimate can vary considerably,

but can be as broad as -50% to +100%. ASTM E 2516-11 at Table X1.1, Doc. 420 at 505:8–

506:15. Under ASTM E 2516-11,

estimate accuracy will generally be correlated with estimate classification (and

therefore the degree of project definition), all else being equal. However, specific

accuracy ranges will typically vary by industry. Also, the accuracy of any given

estimate is not fixed or determined by its classification category. Significant

variations in accuracy from estimate to estimate are possible if any of the

determinants of accuracy, such as differing technological maturity, quality of

reference cost data, quality of the estimating process, and skill and knowledge of

the estimator vary. Accuracy is also not necessarily determined by the methodology

used or the effort expended. Estimate accuracy must be evaluated on an estimate-

by-estimate basis, usually in conjunction with some form of risk analysis process.

ASTM E 2516-11 § 8.5.4. In other words, while the classification of an estimate generally defines

the accuracy of the costs included therein, the standard is not so rigid as to preclude higher or lower

degrees of accuracy. Instead, the accuracy of the estimate must be evaluated on a case-by-case

basis. Dr. Macbeth did that here, and in doing so she concluded that the accuracy of her estimate

was consistent with that of a generic Class 5 estimate, which is -50%/+100%. (Doc. 132 at 26.)

Finally, consistent with Dr. Macbeth’s report and her testimony at the hearing, ASTM E 2516-11

indicates that the degree of project definition and the resulting accuracy of the cost estimates are

generally inadequate for budgeting purposes until the overall estimate reaches Class 3 (project

definition 10% to 40%), and would not reach a level of accuracy sufficient for bidding purposes

until the estimate advances to Class 2 (project definition 30% to 70%). Id. at Table 1.

In civil lawsuits, Oklahoma uses “greater weight of the evidence” as the standard of proof

for juries rendering a verdict and awarding damages. Vernon's Okla. Forms 2d, OUJI-CIV 3.1 (2d

ed.). See also Henderson v. State, 568 P.2d 297, 298 (Okla. Crim. App. 1982) (“A preponderance

of the evidence has been defined by this Court to mean simply the greater weight of evidence”);

Florafax Int’l, Inc. v. GTE Mkt. Res., Inc., 933 P.2d 282, 287 (Okla. 1997) (“it is not an appellate

court's function to decide where the preponderance of the evidence lies—that job in our system of

justice has been reposed in the jury”). Nevertheless, “[d]amages that are uncertain, contingent, or

speculative in their nature cannot be made the basis of a recovery.” 25 C.J.S. Damages § 34. See

also Great W. Motor Lines, Inc. v. Cozard, 417 P.2d 575, 578 (Okla. 1966) (“Damages, to be

recoverable, must be susceptable [sic] of ascertainment in some manner other than by mere

speculation, conjecture or surmise, and by reference to some definite standard”). This does not

mean that any uncertainty prevents recovery. The Oklahoma Supreme Court has held that after

damages have been established “uncertainty as to the exact amount of damages will not preclude

the right of recovery.” Larrance Tank Corp. v. Burrough, 476 P.2d 346, 350 (Okla. 1970).

However, the burden is on Plaintiff to “furnish evidence of sufficient facts and circumstances to

permit the fact-finder to make at least an intelligent and probable estimate of the damages

sustained.” 25A C.J.S. Damages § 292. In Oklahoma, evidence “is sufficient if [it] shows the

extent of damage by just and reasonable inference.” Florafax Int'l, Inc. v. GTE Mkt. Res., Inc.,

933 P.2d 282, 296 (Okla. 1997).

In this case, Dr. Macbeth’s damages estimate is too speculative for a jury to award

damages. Although she arrives at her estimate based off her prior experience and expertise, the

characteristics of a Class 5 estimate (namely that Class 5 estimates are not used for budgeting

purposes, the estimates are given with only 0–2% project definition, and Class 5 estimates have an

accuracy range of - 50%/+100% of actual cost) renders a Class 5 estimate inadequate to establish

a probable estimate of the damages sustained by the Lazy S Ranch. Dr. Macbeth’s proposed model

with 150% variation in total remediation cost could result in actual damages of as low as

$21,646,000 and as high as $86,584,000, which is an extremely large variation in cost to present

to the jury for their consideration. If the court allowed the jury to set damages within this wide

range, it is quite possible that the damages amount decided by the jury could give Plaintiffs either

an undue windfall or under compensation. See, e.g., Occidental Petroleum Corp. v. Wells Fargo

Bank, N.A., 117 F.4th 628, 641 (5th Cir. 2024).

Moreover, awarding Plaintiff damages in this litigation does not guarantee that this alleged

contamination is ever investigated or addressed. Rather than providing a definitive damages

number, Dr. Macbeth testified that her current estimate would serve only as a basis for a “predesign

investigation.” After this investigation, she would “revise[] [the] quantities and assessments, [and]

adjust the remediation approach” to allow accurate construction bids. (Doc. 420 at 538:22–

539:25.) However, there is no guarantee that a judgment in favor of Plaintiff will ever result in

this predesign investigation or adjustment to the remediation process after the conclusion of this

litigation. It is quite possible that “should the Plaintiffs prevail on their current damages theory,

the remedy thus obtained would leave the existing contamination in place . . . untreated and

undisturbed.” New Mexico v. Gen. Elec. Co., 335 F. Supp. 2d 1185, 1259 (D.N.M. 2004). When

Dr. Macbeth presented her conclusions at the Daubert hearing, she appeared visibly stunned when

she learned that any money awarded to remediate the alleged contamination on the property would

not be held in trust to restore the property but would instead be paid directly to Plaintiff with no

guarantee of any of that money being spent on her proposed remediation.

It is true that “[i]n tort cases, a carefully considered estimate leads to a more just result than

denying all recovery to the injured victim.” 25 C.J.S. Damages § 37. In some cases where the

initial estimate is supported by multiple appraisers, a claim for damages based off a Class 5

estimate may lead to a reasonable result. See, e.g., Port of Houston Auth. of Harris Cnty. Texas v.

Louis Dreyfus Co. Houston Exp. Elevator, LLC, No. CV H-19-746, 2022 WL 3446129, at *7 (S.D.

Tex. Aug. 17, 2022) (holding that a jury award based off a Class 5 estimate range was not

unreasonable). However, a damages award cannot be based on estimates that are simply

guesstimates. Massey v. Gulf Oil Corp., 508 F.2d 92, 97 (5th Cir. 1975) (affirming an order for

new trial where damages were based on a percentage of recovery factor which was in early stages

and which an engineer said was “pretty much of a guesstomate [sic]”). In this case, Dr. Macbeth

concedes in her report that her damages are for a “conceptual cleanup plan” and her estimates of

costs for each component are “considered order of magnitude.” (Doc. 132 at 8.) Thus, the number

Dr. Macbeth suggests cannot provide the jury with a reasonably accurate figure for remediation

costs without further predesign investigation to define the specific costs of the project. This alone

is sufficient to preclude her testimony as to the amounts of damages without regard to the propriety

of other underlying assumptions in her damages model. Moreover, even if Dr. Macbeth’s Class 5

estimate (with its inherent uncertainty surrounding the accuracy as to the amount of damages) was

sufficient for a jury to award damages, the court additionally concludes that the multitude of

unsupported assumptions underlying that estimate, when combined with the uncertainty of the

Class 5 estimate, fails to satisfy the requirements of Daubert and Rule 702 which would permit

Dr. Macbeth’s testimony on damages in this case.

As shown by the uncontested facts in this case, and as acknowledged by Dr. Macbeth in

her report, Plaintiff has failed to identify any specific leaks on the Wynnewood Pipeline. Instead,

the Tenth Circuit remanded this case for trial based on circumstantial evidence of gasoline and

diesel in Tulip Springs, Buzzard Springs, and another unnamed spring designated SP-2 that points

toward the Wynnewood Pipeline as the possible source. In lieu of actual evidence regarding the

existence, location, and discharge rate at any known leak sites on the pipeline, Dr. Macbeth

assumed the existence of four leaks at unknown locations. (Doc. 132 at 33.) Moreover, she

assumed that each of these four leaks discharged pipeline liquids in volumes “at least equal to or

more than” the amount discharged in an unrelated leak that occurred on April 28, 2018, on a

property located south of the Lazy S Ranch. (Id. at 28–29.) From those assumptions, Dr. Macbeth

then assumed that the volume of contaminated soil requiring remediation at each of the assumed

leak locations was at least equal to or more than the volume of soil contaminated by the 2018

release.

While the first of these assumptions might be reasonable in isolation given the

circumstantial evidence in this case, the other two – that there are four leaks on the Lazy S Ranch,

and that each of them leaked at least as much as the 2018 leak – are nothing but rank speculation.

Based on these two later assumptions, Dr. Macbeth estimates that it will cost $2,772,000 to fully

remediate the shallow soil contamination from the four assumed leak sites, mostly through

excavating and removing the contaminated soil. (Id. at 41, 52.) Additionally, Dr. Macbeth

assumes that at two of the leak sites the petroleum products that leaked from the pipeline have

penetrated deeper than can be remediated by soil excavation (Id. at 33–36), and that this soil would

have to be remediated by a combination of soil vapor extraction and multi-phase extraction with a

capital cost estimate of $669,000 and ongoing operation and maintenance costs of $214,000 per

year for five years. (Id. at 41, 56.) All combined, Dr. Macbeth estimates the total undiscounted

cost for soil remediation based on these assumptions at $4,618,000 based on nothing more than

speculation and assumptions. (Id. at 7.)

Turning to the groundwater cleanup, Dr. Macbeth relied largely on the opinions of Dr.

Fisher that leaks from the Wynnewood Pipeline have resulted in two plumes of contamination

within the Arbuckle-Simpson Aquifer – one located in the Cool Creek Basin karst aquifer

measuring 645 feet long and 200 feet wide, and one in the South Slope Basin karst aquifer

measuring 245 feet long and 125 feet wide. (Id. at 28.) However, as noted earlier in this order,

Dr. Fisher’s conclusions regarding a contamination plume within the Arbuckle-Simpson Aquifer

are based on unsupported assumptions that have not been validated by any actual testing to confirm

that the Arbuckle-Simpson contains any contamination, much less to the extent and in the locations

suggested by him. Based on Dr. Fisher’s assumptions, Dr. Macbeth selected a groundwater pump-

and-treat remediation system that she further assumed would need to operate for 30 years to restore

the Arbuckle-Simpson Aquifer. (Id. at 36–38.) This system would consist of a total of five

groundwater extraction wells and five groundwater reinjection wells between the two hypothetical

plumes (Id. at 34–35), along with supporting equipment, with a total capital cost of $1,969,000,

along with ongoing operation and maintenance costs of $189,000 per year over the 30 years of

remediation. (Id. at 54, 57.) Dr. Macbeth estimates the total undiscounted cost for groundwater

remediation based on these assumptions at $11,555,000. (Id. at 7.)

During the hearing, the court questioned Dr. Macbeth about some of her assumptions

related to this groundwater treatment remedy. The court noted that Dr. Macbeth’s report assumes

a “continuous source” of contamination over the life of the project. (Doc. 420 at 537:11–538:21.)

Further noting that one of the first steps in the suggested remediation plan was to replace the

allegedly leaking pipeline, the court questioned the propriety of the assumption that contaminants

would continue to feed the alleged plumes of groundwater contamination. (Id. at 549:12–550:13.)

Dr. Macbeth indicated that her analysis assumed continued contamination, even after removal of

the pipeline, because contaminants might leach from the overlying soils and rock or otherwise

enter the aquifer, even if the pipeline were replaced. When questioned about the duration of the

pump-and-treat remedy, she indicated that 30 years was simply the EPA’s default number for these

types of projects, noting further however, that “if those sources [of contamination] are remediated

and controlled, that drastically affects the timeline or time frame that you could expect the

groundwater cleanup to also occur.” (Doc. 420 at 550:21-24.) Continuing, Dr. Macbeth noted:

if those sources are successfully identified, and . . . those sources are removed, then

the restoration time frame for the groundwater system is going to be driven by how

long it takes for whatever is already in the plume and kind of out into the formation

to attenuate and the pump and treat system to remove it down to the restoration

levels.

(Id. at 551:9-17.)

Following up on that notion, the court observed that, according to Dr. Fisher, the plumes

that he modeled in the Arbuckle-Simpson were already at steady state, meaning that they were not

growing. (Id. at 554:2–25.) Even if additional contaminants are leaking from the pipeline and

reaching the aquifer, the plumes are not growing because of natural attenuation, which seems to

indicate that natural processes of decay and dilution are already limiting the plumes to their current

size. Moreover, the largest of the plumes was estimated at only 645 in length – less than a quarter

of a mile from the pipeline on ranch that spans over 6,000 acres. In response to the court’s

questions, Dr. Macbeth acknowledged:

If the sources can be identified and treatment is sufficient then I think the

contaminate plume attenuation could be relied on and often is at sites, you know,

to address or mitigate groundwater impacts. The issue that we have now is that the

sources are not abated and so in this remediation plan estimate we are being

conservative, such that it is comprehensive in -- in representing what that risk and

liability is without controlling sources.

(Id. at 555:5-13.) From this statement, it seems apparent that if natural attenuation is already

limiting the largest of the plumes to 645 feet, then replacing the pipeline or otherwise repairing the

leaks would result in an even smaller plume contained by natural attenuation, thereby casting

further doubt on the propriety of a 30-year, $11 million dollar pump-and-treat remedy. In any

event, having already ruled that Dr. Fisher and the other witnesses will not be permitted to testify

on the aquifer contamination, that leaves no evidentiary basis for Dr. Macbeth’s testimony on the

need for a pump-and-treat groundwater remediation plan since she relies on the testimony of those

other experts to establish the existence of the groundwater contamination plumes in the first

instance.

Moving to the last two remaining categories of damages in Dr. Macbeth’s report, Dr.

Macbeth contends that there are seven contaminated springs on the property and four contaminated

cattle supply wells based on Dr. Fisher’s report. (Doc. 132 at 27–28.) The seven springs are

comprised of Tulip Springs, Buzzard Springs, and five other unnamed springs (designated SP-1,

SP-2, SP-5, SP-6, and SP-7). (Id. at 36.) It is important to note that Dr. Fisher only reports

contamination in Tulip Spring, Buzzard Spring, and SP-2. However, Dr. Macbeth “assumes that

springs SP-1, SP-5, SP-6, and SP-7 are also contaminated because they are all within the same

range of contaminant distribution among the springs.” (Id. at 31.) As a result of this assumption,

Dr. Macbeth calculates the capture and treatment cost for the seven contaminated springs to be

$4,090,000, along with ongoing operation and maintenance costs of $135,000 per year over the 30

years of remediation. (Id. at 53, 55.) This process would involve the creation of three separate

capture and treating systems. Each system would require a holding pond with granular activated

carbon (GAC) to treat the water that each spring discharges. This water would then be “discharged

to the nearest creek or used to supplement the Ranch’s water supply.” (Id. at 37.) Dr. Macbeth

estimates the total cost for the capture and treatment of contaminated springs based on these

assumptions at $10,937,000. (Id. at 41.)

Similarly, Dr. Macbeth assumes that four cattle supply wells (SOW-1, SOW-2, SOW-3,

and SOW-4) are contaminated because “the [wells’] proximity to the pipeline and the same

infiltrating precipitation that supplies water to the springs is the source of groundwater recharge to

the Arbuckle-Simpson Aquifer and will have the same contamination.” (Id. at 31.) Dr. Macbeth

proposes installing point-of-use GAC adsorption treatment system at each of the wellheads to

prevent any contamination from getting out of the wells. She calculates the cost of modifying and

securing the current well heads as $132,000, along with ongoing operation and maintenance costs

of $139,000 per year over the 30 years of remediation. (Id. at 53, 56.). Dr. Macbeth estimates the

total cost for modifying the existing cattle supply wells to treat and discharge water pumped from

the wells at $7,182,000. (Id. at 41.)

Although Dr. Macbeth proposes total damages of $18,199,000 to remediate contamination

in seven springs and four cattle supply wells on the ranch, only three of the springs (Tulip, Buzzard,

and SP-2) were tested to validate whether they contained any contamination. Additionally, none

of the cattle supply wells were tested, and cattle on the property regularly drink water from these

wells with no issue. Dr. Macbeth admitted as such at the hearing. (Doc. 420 at 522:21–526:19).

Dr. Fisher’s report, which serves as the basis for Dr. Macbeth’s damages model, states that springs

SP-1, SP-5, SP-6, and SP-7 “could be contaminated” since there were hydrocarbons recovered

from Tulip Springs, Buzzard Spring and SP-2. (Doc. 131 at 44) (emphasis added). Moreover,

when referring to the cattle water supply wells, Dr. Fisher opines that they are “considered to be

potentially contaminated by refined petroleum product hydrocarbons.” (Id.) (emphasis added).

This sort of untested, hypothetical contamination is not a sufficient evidentiary foundation on

which to base a claim for over $18 million in damages. Even if the testing was done at each of

these sites, the court anticipates that the amount of contamination discovered, if at all, would be

like the other water samples taken at the ranch, which had contamination levels either below the

laboratory’s reporting limits for the contaminants of concern or generally orders of magnitude

below the limits set for drinking water contaminants. Thus, Dr. Macbeth lacks a sufficient factual

basis to opine on the damages suffered by Lazy S Ranch as a result of the alleged seepage from

the Wynnewood Pipeline.

Aside from the foregoing concerns regarding both the fundamental accuracy of the

damages estimates in Dr. Macbeth’s Class 5 feasibility estimate and the various assumptions Dr.

Macbeth makes that compound the risks of speculative damage awards by a jury, the court notes

that some of the damages sought by Plaintiff in this case are for remediation activities that Plaintiff

cannot legally perform. The clearest example is Plaintiff’s request for $6 million in damages to

replace the Wynnewood Pipeline. Dr. Macbeth includes that figure in her report as part of her

damages model to remediate the Lazy S. Ranch. (Doc. 132 at 7.) This figure purports to be based

on Defendant’s own estimates to replace a different portion of the pipeline that is not located on

the Lazy S. Ranch. However, that pipeline belongs to Defendants. Plaintiff cannot lawfully

undertake to replace that pipeline because it is not within the Plaintiff’s control; nevertheless,

Plaintiff asks for $6 million in damages for the cost of replacing the line. Additionally, Plaintiff

asks the court to have the jury order Defendants to replace the line in the pretrial order. (Doc. 230

at 6.)

The court raised this concern at the hearing, noting that the pretrial order did not appear to

preserve any requests for injunctive relief, and questioning how it is that Plaintiff expects to replace

the line using the $6 million in damages while also requesting that Defendants be compelled to

replace the line. (Doc. 420 at 556:9–557:22, 562:8–24.) However, upon further review of the

pretrial order after the Daubert hearing, the court noted that Plaintiff did essentially include a

request for the court to abate the nuisance if Plaintiff prevails on its nuisance claim. (Doc. 417;

421 at 6:19-11:13; 230 at 6.) As a practical matter, injunctive relief is the proper course of action

for most of the relief Plaintiff requests in this case.9 When dealing with nuisance claims, a finding

of either a private or public nuisance gives a court authority to exercise equitable powers to abate

the nuisance. Okla. Stat. tit. 50, §§ 6, 8, 11, 13. See also Fischer v. Atl. Richfield Co., 774 F.

Supp. 616, 619 (W.D. Okla. 1989) (citing to Sheridan Oil Co. v. Wall, 103 P.2d 507, 510 (Okla.

1940)) (holding a court can either issue a mandatory injunction requiring the defendant to abate

the nuisance or Plaintiff can be awarded the costs of abatement). At this point in the litigation, the

parties have not involved any state or federal agencies to aid in investigating the alleged spill or

guiding any potential remediation, so equitable relief would not interfere with ongoing regulatory

or agency actions. Cf. B.H. v. Gold Fields Mining Corp., 506 F. Supp. 2d 792 (N.D. Okla. 2007)

(staying equitable relief where the EPA has already begun remediation). If Plaintiff prevails on a

nuisance claim, the court will exercise equitable powers to oversee the work that Plaintiff should

have done in preparing this case for trial. The court will direct Defendants, as the court determines

appropriate under the law, to investigate, test, repair, or replace the pipeline. Similarly, the court

may direct Defendants to test the aquifer, springs, wells, and soils potentially affected by any leaks

identified from the investigation of the pipeline itself, and remediate any contamination revealed

in those investigations. Such actions will be undertaken by Defendants at Defendants’ own costs,

whatever those may be. If soil, springs, and/or groundwater remediation is warranted, these

actions can be performed once actual investigation confirms the location and size of any actual

contamination. This course of action ensures that any leak found on the property is remedied,

9 As noted by the court elsewhere in this case, the most efficient approach might have been for Plaintiff to involve the

EPA or corresponding state environmental authorities. If the contamination on the ranch is as obvious and significant

as Plaintiff contends, those entities might have had the willingness and the funding to do the investigation that Plaintiff

failed to perform. That might have achieved a timely resolution to any actual leakage, cleanup of any resulting

contamination, and handed Plaintiff the evidentiary basis to pursue any remaining damages claims against Defendants

largely free of charge. Instead, Plaintiff chose to go it alone and focus mostly on damages instead of equitable relief;

now, six years into this case, we are finally going to trial, but with a much higher focus on equitable relief than money

damages.

rather than simply providing Plaintiff monetary damages based on rank speculation necessitated

by the lack of investigation performed so far and with no guarantee that Plaintiff will actually use

any damages awarded to perform the suggested remediation. If Plaintiff prevails on its claims, it

may also be entitled to damages such as diminution in property value and loss of use and

enjoyment, as well as any other monetary and non-monetary relief preserved in the pretrial order.

However, as explained above, Dr. MacBeth’s opinions regarding damages based on the costs to

remediate alleged contamination on the Lazy S Ranch are not based on sufficient facts and data

and are too speculative at this stage of the investigation to go to a jury. Accordingly, she will not

be permitted to testify as to those opinions at trial.

Beyond concerns about Dr. Macbeth’s damages model, the court also must take the

instructions from the Tenth Circuit into consideration. The Tenth Circuit, in reviewing the

undersigned’s previous grant of summary judgment, ordered this court to hold a trial on the issues

of private nuisance under Okla. Stat. tit. 50, § 1, et seq., and public nuisance under Okla. Stat. tit.

27A, §§ 2-6-105(A) and 2-1-102(12). Lazy S Ranch Props., LLC, 92 F.4th at 1199–1201. See

also Nichols v. Mid–Continent Pipe Line Co., 933 P.2d 272, 276 (Okla. 1996) (recognizing that

statutory nuisance claim incorporates, but does not abrogate, common law concepts of private or

public nuisance). As stated above, in consideration of the court’s concerns with Dr. Macbeth’s

damages model and the Tenth Circuit mandate, the court found that it retained the equitable power

in this case to abate a nuisance. (Docs. 417, 421 at 6:19-11:13.) This means that should a jury

find that Defendants’ pipeline constitutes a nuisance, then the court will exercise its equitable

authority to oversee its abatement. Thus, Dr. Macbeth’s damages model no longer applies, as any

costs in the abatement process will be borne by Defendants, regardless of amounts.

Therefore, Defendants’ motion to exclude Dr. Macbeth’s damages model is granted.

However, the process of a court exercising its equitable authority involves discerning factual issues

that are complex. If the court is required to oversee an abatement process, it may need to rely on

experts such as Dr. Macbeth to craft an appropriate plan for abatement. See, e.g., Gold Fields

Mining Corp., 506 F. Supp. 2d at 803. Thus, Dr. Macbeth will be allowed to testify, at the

appropriate time, as to the process and procedures for abating a nuisance such as the one at issue

in this case, even though she will not be allowed to testify as to her proposed damages model. The

parties should consider whether it makes sense to have her do that at trial or at a post-trial hearing,

assuming the jury returns a verdict that authorizes abatement. The latter approach may be more

efficient, sparing the jury unnecessary testimony; however, if the jury returns a verdict that would

authorize abatement, the court intends to proceed quickly to at least the first steps of a proper

investigation, including any actions necessary to mitigate the risks of further leakage from the

Wynnewood Pipeline until a proper inspection of that line can be performed.

IV. Conclusion

Defendants’ motion to disqualify Kiefer and Associates (Doc. 386, 395) is DENIED.

Defendants’ motion to exclude testimony from Trae J. Miller, III (Doc. 390) is GRANTED IN

PART and DENIED IN PART. Defendants’ motion to exclude testimony from Dr. J. Berton

Fisher (Doc. 393) is GRANTED IN PART and DENIED IN PART. Defendants’ motion to

exclude testimony from Dr. Kenneth Ede (Doc. 392) is GRANTED IN PART and DENIED IN

PART. Defendants’ motion to exclude testimony from Dr. Kevin J. Boyle (Doc. 389) is

GRANTED. Defendants’ motion to exclude testimony from Dr. Tamzen Macbeth (Doc. 391) is

GRANTED IN PART and DENIED IN PART.

IT IS SO ORDERED. Dated this 5th day of May, 2025.

__s/ John W. Broomes__________

JOHN W. BROOMES

UNITED STATES DISTRICT JUDGE