SDI Quarry a/k/a Atlantic Civil, Inc. v. Gateway Estates Park Condominium Association

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-1086

_____________________________

SDI QUARRY a/k/a Atlantic Civil,

Inc.,

Appellant,

v.

GATEWAY ESTATES PARK

CONDOMINIUM ASSOCIATION,

Appellee.

_____________________________

On appeal from an order of the Division of Administrative

Hearings.

John G. Van Laningham, Administrative Law Judge.

June 22, 2018

JAY, J.

Appellant seeks review of a final administrative order

awarding compensatory damages to Appellee on the ground that

blasting activities at Appellant’s quarry caused damage to the

shore of Appellee’s lake. Appellant asserts that the order should be

reversed because (1) Appellee’s petition for damages was time-

barred under section 552.40(1), Florida Statutes (2015); and (2)

Appellee failed to prove that Appellant’s blasting activities

damaged Appellee’s lake. We disagree and affirm.

I.

The administrative law judge’s final order outlined the

relevant facts of this case, many of which are undisputed and are

recounted here. Specifically, Appellee is a condominium

association that oversees a mobile home community consisting of

220 mobile homes and two vacant lots. Appellee holds title to a

number of common elements, including a man-made lake—the

South Lake—that was excavated sometime before 1975 when

Appellee was organized.

In 2005, Appellant began blasting at three mines near the

South Lake, the closest being located approximately 7000 feet from

Appellee’s property. This blasting continued without significant

interruption from that time. Appellant performed twenty-five

blasts between July 1, 2015, and October 17, 2016. Based on this

figure, the administrative law judge drew the reasonable inference

that the number of historical blasts affecting Appellee’s property

was in the range of 200 to 250.

In 2011, about five or six years after Appellee began its

blasting activities, the shore of the South Lake began to

destabilize, and saturated soil at the edge of the lake began to

slough and slump into the water. This opened up fissures in the

slope, which undermined the upward bank. In time, holes

appeared in the bank, and pieces of the once level surface fell off,

resulting in a narrowing of the horizontal area from roughly five

feet to about a foot and a half. Residents observed the ground

falling into the water in close temporal proximity to the blasting.

In late 2014 or early 2015, Appellee retained James McNew,

the president and owner of a consulting business called Upper

Keys Consulting, to give recommendations concerning restoration

of the lake bank. On July 18, 2015, Upper Keys Consulting

prepared a proposal in the amount of $840,000.00 for restoring the

shore of the South Lake and installing preventive devices to

protect the shoreline against erosion from further blasting.

On February 22, 2016, Appellee filed a petition pursuant to

the Florida Construction Materials Mining Activities

Administrative Recovery Act, alleging that Appellant had caused

damage to the South Lake through the use of explosives in

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connection with construction materials mining. Appellee

subsequently moved to amend the petition to allege that it was

seeking damages pursuant to the proposal from Upper Keys

Consulting dated July 18, 2015. Appellant opposed the motion on

the ground that the alleged damages were based on an estimate

prepared more than 180 days before the filing of the original

petition, rendering the petition untimely under section 552.40(1),

which required the petition to be filed within 180 days “after the

occurrence of the alleged damage.” The administrative law judge

granted the motion to amend without prejudice to Appellant’s

right to present evidence at the final hearing that the amended

petition was untimely.

At the final hearing, the administrative law judge addressed

Appellant’s motion to exclude Appellee’s proposed expert, James

McNew, on the ground that he was not competent to testify

because he had no training or significant education in seismology,

geotechnical engineering, or geology, other than one class taken in

college in the early 1970s. The administrative law judge

preliminarily denied the motion without prejudice to revisiting the

issue when McNew was called as a witness.

Over Appellant’s renewed objection, McNew was allowed to

testify as an expert on causation. During direct examination,

McNew stated that he consulted extensively with his colleague,

Jack Altoff; that they produced a set of notes based on their

conversations and extensive research of the literature; and that

these conversations formed the basis of his opinion as to the causes

of the slope stability failures around the lake. The administrative

law judge allowed McNew to testify despite Appellant’s objection

that McNew “admitted that some of his opinion was going to be

based on what another engineer told him.”

McNew opined that vibrations from Appellant’s blasting

caused the problems at Appellee’s lake. Specifically, he explained

that these vibrations acted upon the soft layer of silt atop the shore

and bank of the South Lake, causing the liquefaction of this

saturated soil extending up to eight feet beneath the surface. This

led to the compaction of the loose, wet soil around the edges of the

lake, opening up cracks and holes and weakening the slope, which

began to erode and fail. McNew conceded that there were no legal

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standards in Florida or elsewhere establishing thresholds above

which lakeshore slope instability would be expected under the

stress of blast-related vibrations. In formulating his opinion,

McNew stated that he used Transit Authority Guidelines rather

than mining guidelines because the transit guidelines provided a

more realistic standard where the damages were not to buildings.

McNew also ruled out other possible causes such as earthquakes

or heavy truck hauling near the lake.

During Appellant’s case, Appellant presented expert

testimony from two Florida-licensed professional engineers,

Steven Black and Eric Stern, who opined that erosion of the

lakeshore was caused by the action of wind, waves, and rainwater

percolating down and through the ground and pulling the silt from

the bank. Both witnesses concluded that Appellant’s blasting

activities were not close enough to Appellee’s property to impart

sufficient energy to affect the soil around the South Lake. Black

also ruled out heavy truck traffic as a cause, but conceded that

heavy truck traffic could affect the silt layer of a lakeshore over a

continuous period of time.

Appellant also presented expert testimony from Jeffrey

Straw, who opined that soil consolidation would not occur at the

“peak particle velocities” or PPV levels likely to have occurred at

the lakeshore as a result of Appellant’s blasting. Straw disagreed

with NcNew’s opinion that mining guidelines were not applicable

in this case.

In his final order, the administrative law judge found James

McNew’s opinion on causation to be more persuasive than the

competing view offered by Appellant’s experts. In doing so, he

noted that Steven Black’s categorical opinion that blasting could

not be a cause of the damage to Appellee’s lake was undercut by

his concession that heavy truck traffic could affect the silt layer of

a lakeshore over a continuous period of time. The administrative

law judge also found that the circumstantial evidence supported

McNew’s opinion. Specifically, he noted that “the South Lake had

existed for at least 35 years without experiencing the deterioration

of the shore and bank that became noticeable within just five or

six years after the start of the blasting, and which worsened over

time as the blasting has continued.” He also noted “the persuasive

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evidence that visible damage occurs in the wake of individual

blasts.”

Although the administrative law judge credited Steven

Black’s testimony to the extent it supported a finding that erosion

from wind, wave, and rainwater was a natural cause of some of the

bank erosion at the South Lake, he found that Appellant’s blasting

combined with natural forces and constituted a legal cause of the

claimed property damage. He also accepted Jeff Straw’s testimony

concerning the PPV levels likely to have occurred at the lakeshore

as a result of Appellant’s blasting, but rejected Straw’s opinion

that soil consolidation would not occur at those levels, concluding

that this testimony was unpersuasive because Straw merely

conveyed the opinions of the authors of scientific literature that

Straw had read; authoritative literature was supposed to be used

on cross-examination, not to bolster Straw’s opinion testimony;

and Straw’s testimony was inconsistent with Black’s testimony

that ground-borne vibration from heavy trucks could cause soil

erosion at the lakeshore.

Finding that blasting was an ultra-hazardous activity for

which strict liability was imposed, the administrative law judge

concluded that Appellee was not required to prove that Appellant

was negligent or that Appellant’s blasting was the sole cause of

Appellee’s damage. He awarded $840,000.00 in damages as

requested by Appellee based on the proposal from Upper Keys

Consulting dated July 18, 2015, to restore and protect the

shoreline against erosion from further basting. He rejected

Appellant’s claim that Appellee’s petition was untimely,

explaining that “as a matter of fact, the property damage at issue

is present and continuing; the harm to the lakeshore is cumulative,

indivisible, and inseparable.” This appeal followed.

II.

In 2003, the Florida Legislature enacted sections 552.32-

552.44, Florida Statutes, collectively entitled the Florida

Construction Materials Mining Activities Administrative Recovery

Act. Ch. 2003-62, Laws of Fla. Section 552.36(1), Florida Statutes

(2015), provides that “[t]he Division of Administrative Hearings

has exclusive jurisdiction over all claims for damages to real or

personal property caused by the use of explosives in connection

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with construction materials mining activities.” In addition, section

552.40(1), Florida Statutes (2015), provides that “[a] person may

initiate an administrative proceeding to recover damages resulting

from the use of explosives in connection with construction

materials mining activities by filing a petition with the Division of

Administrative Hearings . . . within 180 days after the occurrence

of the alleged damage.” Section 552.40(7) further provides that “[i]f

the administrative law judge finds that the preponderance of the

evidence presented demonstrates that the petitioner’s damages

were caused by the respondent’s use of explosives, the

administrative law judge shall set forth in a final order precise

findings as to the damages attributable to the respondent and shall

direct the respondent to pay damages in an amount supported by

the preponderance of the evidence presented within 30 days after

the final order is issued, unless the matter is appealed in

accordance with s. 552.42.”

A.

Initially, Appellant claims that the administrative law judge

erred in awarding damages to Appellee pursuant to section 552.40

because Appellee’s petition was not filed “within 180 days after the

occurrence of the alleged damage.” Specifically, Appellant notes

that Appellee filed its petition on February 22, 2016, seeking

damages of $840,000.00 based on the written proposal dated July

18, 2015. However, the administrative law judge rejected

Appellant’s claim that the petition was time-barred concluding

that “the property damage at issue is present and continuing; the

harm to the lakeshore is cumulative, indivisible, and inseparable.”

In a continuing tort action, the statute of limitations runs from the

time of the last tortious act. Millender v. State, Dep’t of Transp.,

774 So. 2d 767, 769 (Fla. 1st DCA 2000).

Although no Florida case law has addressed this precise issue,

other jurisdictions have recognized that repeated blasting

activities can constitute the continuing tort of trespass. See Haynie

v. Howmedica Osteonics Corp., 137 F. Supp. 2d 1292, 1294 n.5

(S.D. Ala. 2000); Oswald v. Metro. Life Ins. Co., 968 F. Supp. 639,

645-46 (M.D. Ala. 1997); Moon v. Harco Drugs, Inc., 435 So. 2d 218,

220-21 (Ala. 1983); Donaldson v. Amerikohl Mining, Inc., No. 1892

WDA 2014, 2015 WL 3938721 (Pa. Super. Ct June 9, 2015). The

6

administrative law judge found that Appellant performed twenty-

five blasts between July 1, 2015, and October 17, 2016, and drew

the reasonable inference that the number of historical blasts

affecting Appellee’s property was in the range of 200 to 250.

Furthermore, Appellant sought damages to repair and restore the

lakeshore and to abate future erosion of the lakeshore. These

constitute temporary damages, which are properly recovered in a

continuing tort action for trespass. See Town of Miami Springs v.

Lawrence, 102 So. 2d 143, 146 (Fla. 1958); Baker v. Hickman, 969

So. 2d 441, 443 (Fla. 5th DCA 2007); Carlton v. Germany

Hammock Groves, 803 So. 2d 852, 856 (Fla. 4th DCA 2002);

Kulpinski v. City of Tarpon Springs, 473 So. 2d 813 (Fla. 2d DCA

1985); see also Bisque Assocs. of Fla., Inc. v. Towers of Quayside

No. 2 Condo. Ass’n, Inc., 639 So. 2d 997, 999 (Fla. 3d DCA 1994)

(distinguishing between permanent damages, which are measured

by diminution in the value of property, and temporary damages,

which are measured by the cost of repairing or restoring the

property to its original condition). Based on the above, we conclude

that Appellee alleged a continuing tort such that each blast

performed by Appellant gave rise to a new cause of action for which

successive actions for damages might be brought.

Even if Appellee alleged a continuing tort, Appellant argues

that Appellee can only recover damages from blasting activities

that occurred less than 180 days before the filing of Appellee’s

petition. Because Appellee sought damages based on a written

proposal dated July 18, 2015, Appellant asserts that Appellee

sought damages for blasting activities occurring more than 180

days before the filing of Appellee’s petition, which were timed

barred by section 552.40(1). However, the administrative law

judge awarded $840,000.00 based on the written proposal “for

restoring the shore of the South Lake and installing preventative

devices to protect the shoreline against erosion from future

blasting.” The one-page proposal does not break down the cost of

restoring the lake to its original condition—which could be time-

barred—and the cost of installing preventive devices to protect the

shoreline against erosion from future blasting—which would not

be time-barred. Testimony at the final hearing did not break down

these costs in further detail.

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Furthermore, Appellant has not established that damages for

restoration of the lake are entirely untimely. James McNew

testified at the final hearing that his proposal was current as of

the date of the final hearing; Appellee presented testimony that

the lakeshore continued to deteriorate after Appellant’s blasting

activities in 2016, which fell within the 180-day limitations period;

and the administrative law judge found that “[t]he stability of the

slope has continued to worsen, and, as of the final hearing, the

deterioration of the lakeshore, like the blasting, was ongoing.” To

the extent that a portion of the damage award might be time-

barred, Appellant has failed to meet its burden of showing what

portion of the award was barred by the statute of limitations. See

Town of Miami Springs, 102 So. 2d at 146 (holding that the burden

is on the pleader to prove the defense of the statute of limitations);

State, Dept. of Envtl. Prot. v. Fleet Credit Corp., 691 So. 2d 512,

513 (Fla. 4th DCA 1997) (“Fleet’s failure to controvert this

evidence precludes its argument that the statute of limitations

bars the instant action, as Fleet must carry the burden of proving

a statute of limitations defense.”); see also Hanano v. Petrou, 683

So. 2d 637, 639 (Fla. 1st DCA 1996).

B.

Assuming that Appellee’s petition was not untimely,

Appellant claims that Appellee failed to prove that Appellant’s

blasting activities damaged Appellee’s lake. In doing so, Appellant

claims that James McNew should not have been accepted as an

expert under the standard of Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), which was adopted

when section 90.702, Florida Statutes, was amended in 2013. Ch.

2013-107, § 1, Laws of Fla. Although the Florida Supreme Court

declined to adopt this amendment to the extent it was procedural

in In re Amendments to Florida Evidence Code, 210 So. 3d 1231

(Fla. 2017), the amendment would still apply in administrative

proceedings under Chapter 120, Florida Statutes, which are not

governed by rules of procedure promulgated by the Florida

Supreme Court. See § 120.54(5)(a)1., Fla. Stat. (2016) (providing

that the uniform rules adopted by the Administration Commission

shall be the rules of procedure for each agency subject to Chapter

120). However, even though the Daubert standard would apply,

Appellant’s claim is not preserved for appeal because Appellant

8

never raised a Daubert objection or requested a Daubert hearing

below. See Rojas v. Rodriguez, 185 So. 3d 710 (Fla. 3d DCA 2016);

Booker v. Sumter Cty. Sheriff’s Office/N. Am. Risk Servs., 166 So.

3d 189, 192-93 (Fla. 1st DCA 2015). Accordingly, we cannot

address Appellant’s legal challenge to McNew’s opinion to the

extent Appellant alleges a flawed scientific foundation or

methodology.

In its motion to exclude McNew’s testimony, Appellant simply

claimed that although McNew had a bachelor’s degree in

mechanical engineering in 1972, he was neither trained nor

experienced in the fields of seismology, geotechnical engineering,

or geology, which was necessary for the witness to express an

opinion on the causal relationship between Appellant’s blasting

activities and Appellee’s alleged damages. Appellant repeated this

claim during the final hearing without further elaboration. The

administrative law judge denied Appellant’s motion and addressed

the issue in his final order as follows:

Although Mr. McNew is not licensed as a professional

engineer, he holds a bachelor’s degree in mechanical

engineering, awarded in 1972, and during the course of a

50-plus-year career has been involved as a consultant or

project manager on a number of marine projects,

including the construction of 27 bridges in South Florida,

all of which had earthwork abutments and adjoining

bodies of water. Some of the projects Mr. McNew

supervised involved drilling and blasting operations. As a

result, Mr. McNew has acquired specialized knowledge

relating to the use of explosives in and around saturated

and submerged soils from long practical experience, which

in addition to his formal education and training qualified

him to testify as an expert on causation in this case.

Based on these findings—which are supported by competent

substantial evidence—the administrative law judge did not abuse

his discretion in finding McNew qualified to testify as an expert on

causation in this case. See Chavez v. State, 12 So. 3d 199, 205 (Fla.

2009) (“A witness may be qualified as an expert through specialized

knowledge, training, or education, which is not limited to academic,

scientific, or technical knowledge. An expert witness may acquire

9

this specialized knowledge through an occupation or business or

frequent interaction with the subject matter.”); Brooks v. State, 762

So. 2d 879, 892 (Fla. 2000) (“It is within the trial court’s discretion

to determine a witness’s qualifications to express an opinion as an

expert, and the trial court’s determination in this regard will not

be reversed absent a clear showing of error.”).

Appellant also objected below to McNew’s testimony on the

ground that McNew “admitted that some of his opinion is going to

be based on what another engineer told him.” Specifically, McNew

testified that he consulted extensively with his colleague, Jack

Altoff; that they produced a set of notes based on their

conversations and extensive research of the literature; and that

these conversations formed the basis of his opinion of the causes of

the slope stability failures around the lake. In Linn v. Fossum, 894

So. 2d 974 (Fla. 1st DCA 2004), this court held that the trial court

did not err in admitting the expert opinion testimony of a urologist,

who testified that she consulted with other urologists in

formulating her opinion, noting that “[i]t is proper for an expert

witness to consult with other experts in the same field in

formulating an opinion.” Id. at 977. Although the Florida Supreme

Court quashed this decision, it did so on the narrower ground that

the trial court erred in allowing an expert to testify on direct

examination that she consulted with colleagues, approving the

Fourth District’s decision in Schwartz v. State, 695 So. 2d 452 (Fla.

4th DCA 1997). Linn v. Fossum, 946 So. 2d 1032 (Fla. 2006). In

Schwartz, the Fourth District held that “while there was nothing

improper about Dr. Burton consulting with other experts in his

field, he should not have been allowed to testify that he did so on

direct examination.” 695 So. 2d at 455 (emphasis added).

Accordingly, while it may have been potentially improper for

McNew to testify on direct examination that he consulted with a

colleague in arriving at his opinion, McNew’s consultation with a

colleague was not a basis for excluding McNew’s testimony in its

entirety. See Schoenwetter v. State, 931 So. 2d 857, 870-71 (Fla.

2006) (holding that the trial court did not abuse its discretion by

allowing a medical examiner—who did not perform the subject

autopsies—to testify about the cause and manner of death based,

in part, on discussions with the medical examiner who did conduct

the autopsies); Univ. of Fla. Bd. of Trs. v. Stone ex rel. Stone, 92

10

So. 3d 264, 272 (Fla. 1st DCA 2012); G.V. v. Dep’t of Children &

Families, 795 So. 2d 1043, 1048-49 (Fla. 3d DCA 2001).

Even if the administrative law judge did not abuse his

discretion in admitting McNew’s testimony, Appellant asserts that

the administrative law judge should not have relied on it because

McNew did not specifically state his opinion within a reasonable

degree of scientific probability or certainty. However, when asked

for his final opinion, McNew testified—without equivocation—that

Appellant’s “blasting and the vibrations created from the blasting

caused this problem[,]” rendering the testimony competent

evidence that the administrative law judge could consider on the

issue of causation. See Brown v. Glade & Grove Supply, Inc., 647

So. 2d 1033, 1036 (Fla. 4th DCA 1994); see also Miami-Dade Cty.

Sch. Bd. v. A.N., Sr., 905 So. 2d 203, 206 (Fla. 3d DCA 2005) (“We

hold that the substance of the psychologist’s testimony when

considered in its entirety meets the threshold of ‘reasonable

probability’ . . . .”); cf. Buenoano v. State, 527 So. 2d 194, 197-98

(Fla. 1988) (“Expert medical testimony as to the cause of death

need not be stated with reasonable certainty in a homicide

prosecution and is competent if the expert can show that, in his

opinion, the occurrence could cause death or that the occurrence

might have or probably did cause death.”).

In addition to McNew’s expert testimony, the administrative

law judge relied on circumstantial evidence to find a causal

connection between Appellant’s blasting activities and the damage

to Appellee’s lake. Causation can be established by both expert

testimony and circumstantial evidence. See Gant v. Lucy Ho’s

Bamboo Garden, Inc., 460 So. 2d 499 (Fla. 1st DCA 1984); see also

Brown, 647 So. 2d at 1036. Generally, the issue of proximate

causation is to be resolved by the trier of fact. Coker v. Wal-Mart

Stores, Inc., 642 So. 2d 774, 778 (Fla. 1st DCA 1994). A finding of

causation will be sustained on appeal if it is supported by

competent substantial evidence. See State, Dep’t of Children &

Family Servs. v. Amora, 944 So. 2d 431, 435-36 (Fla. 4th DCA

2006). We conclude that competent substantial evidence supports

the administrative law judge’s finding that Appellant’s blasting

activities were a contributing cause of the damage to Appellee’s

lake. The administrative law judge correctly concluded that this

was sufficient to subject Appellant to strict liability because

11

blasting is an ultra-hazardous activity. * See Poole v. Lowell Dunn

Co., 573 So. 2d 51, 52 (Fla. 3d DCA 1990) (holding that defendant

engaged in blasting activities, which the trial court found to be

ultra-hazardous and subject to strict liability, was liable for the

consequences of his conduct even though some other cause

contributed to the same damage).

C.

Finally, Appellant claims that the trial court erroneously

rejected the expert testimony of Jeffrey Straw. The decision to

accept or reject expert testimony is reviewed under an abuse of

discretion standard. Beach Cmty. Bank v. First Brownsville Co., 85

So. 3d 1119, 1121 (Fla. 1st DCA 2012). However, discretion in

rejecting expert testimony cannot be exercised arbitrarily and

requires some reasonable basis in the evidence. Id. The

administrative law judge did not reject Straw’s testimony in its

entirety, but only his opinion that soil consolidation would not

occur at the PPV levels likely to have occurred at the lakeshore as

a result of Appellant’s blasting. The administrative law judge

found this testimony unpersuasive because Straw merely conveyed

the opinions of the authors of scientific literature Straw had read;

authoritative literature was supposed to be used on cross-

examination, not to bolster Straw’s opinion testimony; and Straw’s

testimony was inconsistent with Black’s testimony that ground-

borne vibrations from heavy trucks could cause soil erosion at the

lakeshore. Contrary to Appellant’s assertions, the administrative

law judge’s rejection of this testimony was not arbitrary and had

some reasonable basis in the evidence.

*There is nothing in the statutory language of the Florida

Construction Materials Mining Activities Administrative Recovery

Act expressing an intent to modify the common law regarding

strict liability for ultra-hazardous activities. Accordingly, we

presume that the Act was not intended to alter that particular

aspect of the common law. See Ady v. Am. Honda Fin. Corp., 675

So. 2d 577, 581 (Fla. 1996) (“A court will presume that . . . a statute

was not intended to alter the common law other than by what was

clearly and plainly specified in the statute.”).

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III.

Because Appellant failed to establish that any of the

administrative law judge’s rulings constituted reversible error, we

affirm the final administrative order in its entirety.

AFFIRMED.

WETHERELL, J., concurs; MAKAR, J., concurs with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

MAKAR, J., concurring.

This case involves seismological liability-science, in which

dueling experts tried to explain whether the heavily-regulated

South Florida underground mining detonations of SDI Quarry,

Inc., commenced in 2005, caused the edge of a man-made lake

located over 1.25 miles away to slowly degrade about one yard

landward starting six years later. I reluctantly concur because our

review is confined to accepting the science and lay testimony as

presented, which was not subject to scrutiny under Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), leaving

vast discretion as to causation in the fact-finder’s hands.

South Lake is one of two man-made lakes owned by a

condominium association that oversees a mobile home community

known as Gateway Estates, located in Miami-Dade County,

Florida. The lake—excavated sometime before 1975—is narrow

and dog-bone shaped, approximately 800 feet long and between 50-

120 feet wide. It lies about 200 feet south of the community’s other

artificial lake, which is rectangle-shaped and aptly named North

Lake.

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Since 2005, SDI Quarry conducted underground blasts no

closer than 7,000 feet east of South Lake, averaging about 20 times

per year. Each was closely monitored and their vibrations were

recorded. All were within lawful levels established by state law

(the limit is a peak particle velocity (PPV) of 0.5 inches per second);

none exceeded 0.2 PPV at South Lake (most being 0.1 PPV). No

damage to South Lake was evident for five to six years of blasting

until 2011, when its shore first began to show signs of

destabilization, 1 resulting in this litigation under Florida’s

Construction Materials Mining Activities Administrative Recovery

Act, which provides a “specific administrative remedy” for claims

of damages from explosive use in construction materials mining

activities. §§ 552.32-40, Fla. Stat.

The issue of whether the detonations caused harm to South

Lake’s shoreline was the focal point of the proceedings. The

property owners’ expert—a marine construction consultant who

had no training/education in seismology, geology, or related

1 The record contains no reference to whether North Lake or

nearby lakes, retention ponds or the like (e.g., water hazards on a

golf course by the blast site) suffered a similar fate.

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disciplines—and based his opinion on consultations with a

colleague and Internet research—claimed that vibrations from the

underground explosions traveled over 1.25 miles (as the mole

bores), resulting in liquefaction of deep-seated muck and

ultimately a weakened and eroding lake bank; he ruled out

earthquakes and heavy trucks driving nearby as causes. A few

property owners said they noticed damage to the lakeshore after

individual blasts had occurred (though no one felt the vibrations

at the time). The mining company’s experts—both experienced and

licensed professional engineers, one specializing in geotechnical

soil conditions and the other specializing in measuring vibration

in blasting, pile driving, and heavy construction—countered that

the dissipated seismic energy at that distance would not cause any

harm; they also pointed out that erosion of the lakeshore was likely

due to rainwaters, wind, and wave action causing the bank’s silt to

flow downward via gravity. The blasts were all within state

standards, which doesn’t negate potential liability, but no

generally accepted scientific standard exists as to relevant

threshold PPV levels for when man-made lakeshores would be

affected adversely by vibrations from afar. Scientific standards

exist for buildings, but the lack of standards for artificial lake

banks forced the experts to conjecture as to what levels were likely

to trigger physical degradation like that at South Lake.

Given these competing narratives of scientific causation, the

administrative law judge—as finder-of-fact in this category of

cases—said it was a “close case” but favored the property owners’

version, supplementing his legal conclusion as to causation with

his “common knowledge and ordinary experience” as to how

vibrations from nearby trucks compare vis-a-vis underground

blasts, which he used to discredit one of the company’s experts.

Because no seismic standards for waterbody shores were

established by the evidence, the administrative law judge resorted

to “inferring” that vibration from nearby traffic on a major

highway would be less than that of the blasting, again discrediting

the company’s expert. Notably, the property owners’ expert wasn’t

subject to a Daubert objection or hearing, which might have

resulted in the exclusion of portions of his testimony for lack of a

scientific foundation that only experts in seismology and

geotechnical soil conditions could provide. Other than the opinion

testimony of the property owners’ expert, no scientific evidence

15

existed that the lake banks were adversely affected by the distant

underground blasts (lay testimony merely supported his

testimony). But we take the case as presented, which provides no

preserved basis for reversal as to causation.

The result in this case harkens back fifty years, to pre-

Daubert days, when the federal government was sued for its sonic

boom test program, which resulted in liability for seismic damage

to homes near Oklahoma City. United States v. Gravelle, 407 F.2d

964 (10th Cir. 1969). The six-month program, consisting of 1,253

test flights at altitudes of 21,000-50,000 feet, was intended to “gain

information probing the feasibility of developing supersonic

commercial aircraft and the particular purpose was to measure

structural response to sonic booms as well as ‘determine the

normal reaction of ground population over a significant period of

time to sonic boom pressures.’” Id. at 966. On appeal, the

“questions presented [were] very limited and the principal issue

probe[d] the quality and quantity of evidence necessary to sustain

an affirmative finding of causation of damages occasioned by the

government’s wilful [sic] tort.” Id. at 965-66. 2

Much like this case, the sonic boom trial involved the same

competing narratives of causation: the (arguably) high

quality/quantity of scientific evidence presented by the defense

experts establishing no possibility of causation versus the

(arguably) lesser quality scientific testimony of the plaintiffs’

expert (overlaid with lay testimony of property owners) who opined

that sonic boom vibration was the cause of the damage to their

homes (most of which consisted of the “formation of new cracks;

glass breakage; the reopening of old cracks which had been

repaired prior to the booms; and the popping of nails in

plasterboard”). Id. at 966.

2 The three issues raised were: “1. Whether, as a matter of law,

plaintiffs failed to sustain their burden of proving that sonic booms

generated by Government aircraft caused damage to their

properties. 2. Whether the district court’s determination that the

sonic booms caused the damage is clearly erroneous. 3. Assuming

that the sonic booms did cause the damage, whether the district

court erred in not finding that the damage caused was de minimis.”

Id. at 966.

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Indeed, the federal government, in Gravelle, put on massive

amounts of scientific evidence (the appellate court characterized it

as “impressive”), but the legal standard on appeal was not who

provided the highest quality and greatest quantity of scientific

input; instead, the only inquiry was whether the district judge’s

finding of causation was “clearly erroneous.” The appellate court,

noting that the “quality of proof under such circumstances [sonic

boom testing] can only be, and need only be, minimal,” a “standard

[that] was met by the experts’ opinion that the subject damage,

viewed in the light of the homeowners’ account of their properties’

history, was ‘likely’ caused by the sonic booms.” Id. at 969.

Notably, the causation question was not exclusively (and

perhaps predominantly) a scientifically-driven inquiry in Gravelle;

nor was it one in this case. Given two narratives as to scientific

causation, a potential tie-breaker of sorts is the non-scientific

testimony of the affected property owners when used to buttress

their expert. In Gravelle, for example, the homeowners “testified

in some instances that particular items of damage occurred in

front of their eyes at the instant of a boom; more often this

testimony was to the effect that defects in the homes were not

present in the structures before the booms and were found for the

first time after the booms or worsened during the progress of the

continuing program.” Id. at 966-67. The federal government

“emphatically attack[ed] both the legal competency and the value

of this lay testimony to in any way probe the ultimate issue of

causation.” Id. at 967. Rejecting this argument, the appellate court

said:

Such testimony, if deemed credible, may be considered by

the fact-finder as establishing a circumstance which in

turn is pertinent to the issue of causation. The lay

witnesses could not, of course, competently testify as to

the forces that sonic booms create for such a subject

requires specialized knowledge and understanding.

However the desirability or need for expertise in

testimony probing an ultimate fact does not preclude, as

a matter of law, all other evidence for ‘expert evidence

does not foreclose lay testimony concerning the same

matter which is within the knowledge and

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comprehension of the lay witness.’ . . . Although the

judgments in the case at bar are dependent on acceptance

of the testimony of the lay witnesses by both the fact-

finder and the expert witnesses called by [plaintiffs], we

hold that such acceptance is legally proper in both

instances.

Id. at 967 (citations omitted). 3 Stated differently, non-scientific lay

testimony that logically bolsters the testimony of the scientific

expert is permissible, even if it independently lacks a scientific

basis.

Applied here, the administrative law judge had broad

discretion to construct a conclusion as to causation. He could have

sided with the company, concluding that its experts were more

credible and that no causation was proven; he could have sided

with the property owners’ expert, concluding that causation was

proven; or he could have made variegated findings (as he did,

siding with each side’s experts and evidence to some extent) and

found or denied causation; he also could have found that the

blasting was one of a number of man-made and natural factors

(e.g., tropical storms and hurricanes) that contributed to causing

the property damage (as he did) and decided that it was significant

or not. Different administrative law judges could reach different

conclusions. On this record, limited by no Daubert review, most

any finding as to causation or lack thereof would be deemed legally

3 The court in Gravelle, much like the administrative law

judge here, injected a dose of “common knowledge” in rejecting the

defendant’s experts. In Gravelle, the experts pointed out that “the

threshold of human irritation from auditory and motion stimuli is

much lower than the irritability threshold for structures,” such

that homeowners experiencing sonic booms might think their

homes were “about to fall apart, when in fact no structural damage

was occurring” particularly because they were “forewarned, as

here, of the occurrence of sonic booms and the expressed

willingness of the government to pay for resultant damages, if

any.” 407 F.2d at 967. Though finding the premise of this point “to

be indisputable as a matter of common knowledge,” the court

nonetheless deemed it a credibility issue for jurors, rather than an

appellate court, to adjudge. Id.

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supportable under appellate review; the administrative law judge

said as much, noting that “there is competent, substantial evidence

on both sides.”

Some people will deem it scientifically far-fetched to believe

that lawful underground blasting in the range of 0.1 to 0.2 PPV

over 1.25 miles away caused a man-made lake to gradually

degrade over a decade for which $840,000 in compensation is owed;

others will see it as entirely possible, and the damage award as a

just result for an ultra-hazardous activity. Some will decry reliance

on testimony by property owners that blasting was coincident with

their damages, citing self-interest and bad science; others will

applaud that such testimony and the administrative law judge’s

reliance on “common knowledge and ordinary experience” provide

a necessary dose of reality to counter lifeless scientific data that

lacks context. A skeptical few might go so far as to say that a

Magic-8 Ball would be just as accurate in deciding causation,

perhaps justifying greater scientific standards or a court-

appointed expert to assist the judges. See, e.g., Rule 706, Fed. R.

Evid. (2018) (“Court Appointed Expert Witnesses”). Such is the

current state of debate about causation and seismological liability-

science, which hasn’t changed much in fifty years.

_____________________________

Diane H. Tutt of Conroy Simberg, Hollywood, for Appellant.

Dale C. Glassford of Dale C. Glassford, P.A., Miami, for Appellee.

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