          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
                                 2
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

                                  3
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

                                  4
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
                                5
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.



                                 7
     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.”).

                                  12
                                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.




                                13
     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.
                                  14
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

                                17
    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.
                                  18
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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