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ConocoPhillips Company v. Utah Department of Transportation

Court of Appeals of Utah

April 20, 2017

ConocoPhillips Company and Pioneer Pipe Line Company, Appellees,
v.
Utah Department of Transportation and Ames Construction Inc., Appellants.

         Second District Court, Farmington Department The Honorable Thomas L. Kay No. 120700141

          Miles M. Dewhirst, Rick N. Haderlie, and Kyle L. Shoop, Attorneys for Appellants

          Robert E. Mansfield and Steven J. Joffee, Attorneys for Appellees

          Judge Michele M. Christiansen authored this Opinion, in which Judges Kate A. Toomey and David N. Mortensen concurred.

          OPINION

          CHRISTIANSEN, JUDGE

         ¶1 The appellants seek to set aside the district court's judgment against them. They contend that, during the jury trial, the court erred (1) by ruling that portions of a deponent's testimony did not qualify as admissible expert testimony pursuant to Utah Rule of Evidence 702 and (2) by failing to strike portions of a percipient witness's testimony that amounted to an unsolicited expert opinion. We conclude that the district court properly excluded the relevant portions of the deposition and that any error in failing to strike the trial testimony was invited; consequently, we affirm. We remand to the district court for the limited purpose of calculating attorney fees incurred on appeal.

         BACKGROUND

         ¶2 The Utah Department of Transportation (UDOT) hired

         Ames Construction Inc. (collectively, Defendants) as the general contractor for a highway construction project. Completion of the project required the relocation of several utilities, including a pipeline owned by ConocoPhillips Company (Conoco). UDOT therefore entered into written agreements with Conoco under which Conoco agreed to relocate the relevant section of pipeline and UDOT agreed to reimburse Conoco for the costs of doing so. The pipeline relocation was completed in March 2007; the pipeline was inspected before, during, and after the relocation to ensure that it was not damaged. Portions of the new pipeline run parallel to and under the new highway, approximately 28 feet underground.

         ¶3 After the relocation was completed, Defendants installed wick drains in the ground around the highway project. Wick drains are used to remove excess moisture from the ground in construction areas. They are essentially "pipes" driven into the ground that allow groundwater to seep through semi-permeable sides and collect inside the drain for removal or evaporation. During the highway project, Defendants used hundreds of wick drains driven up to 100 feet underground.

         ¶4 On April 3, 2007, one of Conoco's supervisors noticed that 27 to 30 wick drains had been installed within 7 or 8 feet of the surface markers indicating the pipeline's underground location.[1] At least one of the wick drains was within 4 feet of the pipeline markings. The supervisor halted all work in the area to investigate whether the wick-drain installation had damaged the pipeline or the pipeline's cathodic anti-corrosion coating. See generally 49 C.F.R. §§ 195.563, 195.571 (2017) (federal regulations requiring cathodic protection of certain types of underground pipelines).

         ¶5 As part of the investigation, Conoco hired Brent Cathey to conduct a direct-current-voltage-gradient (DCVG) test. DCVG testing indirectly detects "holidays[2] or voids in a pipeline's coating" by measuring voltage gradients in the soil. Cathey did not detect any holiday indications at the site.

         ¶6 Several years later, in 2010, the pipeline was physically inspected, and damage to its upper portion was found in two areas. The first was a 0.6-inch-deep dent at the "12:15 position." The second was a 1.05-inch-deep dent "located at the 11:00 position." The GPS coordinates of the damaged areas were "in very close proximity" to where two of the wick drains had been installed in April 2007.

         ¶7 Conoco filed this lawsuit against Defendants, alleging breach of contract and negligence. During the three-day jury trial, Conoco presented evidence suggesting that the wick-drain installation caused the dents on the pipeline. Defendants presented contrary evidence including Cathey's deposition.[3] The parties agree that Cathey's deposition contained eight statements relevant here:

(1) that his DCVG test followed standards set by the National Association of Corrosion Engineers;
(2) that the DCVG test did not detect any holiday issues in the pipeline's coating in the area where the wick drains had been installed;
(3) that "improper installation" is the primary cause of holidays;
(4) that third-party damage to a pipeline is "very apparent" in contrast to damage caused by improper installation;
(5) that third-party damage caused by "some kind of mechanical machine [is] normally going to damage the pipe as well as the coating";
(6) that installation of a wick drain "would definitely damage a pipeline if it got broken into it";
(7) that, when he conducted the DCVG test, he did not believe that the wick drains had ...

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