Expert testimony, injunctive relief/water drainage

Motion to strike an expert witness’s testimony; MRE 702; Causation; Temporal relationship; Trespass claim related to water moving between properties; Final injunctive relief; Adoption of a drainage-solution plan proposed by an independent expert; Wiggins v City of Burton; Denial of a preliminary injunction barring further property grading; Contempt; Testimony from a witness not disclosed before the hearing  

In this case arising from water moving between the parties’ properties, the court held that the trial court did not abuse its discretion by failing to strike defendant’s expert witness (R), or in denying plaintiffs summary disposition of defendant’s trespass counterclaim. It also did not abuse its discretion in adopting the independent expert’s (P) proposed drainage-solution plan, or err in not issuing a preliminary injunction barring plaintiff-Coan from doing further property grading. Finally, the trial court did not abuse its discretion in finding defendant in contempt. As to R’s testimony, he “did not rely solely on soil borings in reaching his conclusions but also relied on topographical maps and aerial photography. Plaintiffs contend that, for his testimony to have any value, [R] needed to have calculated the volume of water flowing between the properties. However, even the fact of a redirection of water was something that would ‘assist the trier of fact to understand the evidence or to determine a fact in issue[.]’ Photographic evidence or testimony from other witnesses could then go toward the issues of the exact direction of the water and the water volume.” The court next found that defendant presented “sufficient evidence of causation” as to his trespass counterclaim to survive plaintiffs’ summary disposition motion. Both sides took issue with the trial court’s adoption of P’s drainage-solution plan in granting final injunctive relief. The court concluded that “the trial court gave adequate reasons why” plaintiffs’ proposed “plan, which relied on sloping and an infiltration zone, was not feasible.” And while they asserted that P’s “plan forces parties to install pipes potentially against their will, contrary to the holding in Wiggins[,]” it was clear here that the trial court “was going to force the parties to make some alterations to their properties to resolve the long-running dispute at issue in this case. Indeed, that was the entire point of the bench trial.” Defendant contended that P’s plan was not supported by sufficient evidence, but P stated that he met twice with R “and with plaintiffs’ expert to understand the current drainage conditions and reviewed topographical surveys, site information, and plans depicting the drainage for both parcels.” Affirmed.