Fick v. Exxon Mobil Corporation
2:13-cv-06608
E.D. La.Jan 9, 2017Background
- Plaintiffs proffered Glen Hickerson as an expert in historical aerial photograph interpretation in a suit against ExxonMobil; Exxon moved in limine to exclude his testimony.
- Exxon contended Hickerson lacked photogrammetry credentials (not a certified photogrammetrist) and used an unreliable methodology (examining a single, magnified mono image rather than stereoscopic pairs).
- Plaintiffs argued Hickerson is qualified to interpret two-dimensional historical imagery and relied on established photographic-interpretation principles (ten basic elements; ASPRS Manual of Photographic Interpretation).
- Hickerson’s background: B.S. in Geology, former EPA EPIC analyst (monoscopic and stereoscopic imagery), 30+ years’ experience in aerial photographic interpretation and photogrammetry, currently VP of Environmental Research, Inc.
- The Court applied Rule 702 and Daubert/Kumho framework: assess qualifications, reliability, relevance; gatekeeping standard but flexible Daubert factors.
- Court denied Exxon’s motion: found Hickerson qualified and his methodology sufficiently reliable; evidentiary weaknesses go to weight, not admissibility, and Exxon may cross-examine and present its own expert.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Qualification to testify on aerial-photo interpretation | Hickerson’s EPA experience and 30+ years qualifies him to interpret 2D historical photos | Hickerson is not a certified photogrammetrist and lacks requisite photogrammetry credentials | Court: Qualified to testify as an expert in historical aerial photography interpretation |
| Reliability of methodology (use of single image vs. stereoscopic pairs) | Interpretation using established photographic-interpretation principles (ASPRS; Manual) is a recognized method | Stereoscopic analysis is the standard; single-image magnification is insufficient and invites speculation | Court: Methodology sufficiently reliable; stereo pairs are common but not mandatory; issues affect weight, not admissibility |
| Whether a Daubert hearing was needed | Plaintiffs relied on submitted declarations and materials | Defendant sought exclusion based on methodology and qualifications | Court: No live Daubert hearing required (judge has used stereoscope); denied exclusion |
| Scope of exclusion sought by defendant | Plaintiffs sought admission of Hickerson’s opinions from LLE_Fick01756 | Exxon sought exclusion of any testimony based on that photograph | Court: Testimony not excluded; Exxon may cross-examine and offer rebuttal expert evidence |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (trial court gatekeeper must assess relevance and reliability of expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to all expert testimony, not just scientific)
- Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581 (5th Cir. 2003) (Daubert factors guide reliability inquiry)
- Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th Cir. 2007) (expert reliability assessed by methodology validity)
- Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546 (5th Cir. 2004) (challenges to expert bases go to weight, not admissibility)
- Pipitone v. Biomatrix, Inc., 288 F.3d 239 (5th Cir. 2002) (court should exclude unreliable expert testimony under Daubert)
- Mathis v. Exxon Corp., 302 F.3d 448 (5th Cir. 2002) (party offering expert must prove reliability by preponderance)
- Wagoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771 (E.D. La. 2011) (district court may exclude an expert lacking qualifications for a specific topic)