United States District Court, D. Vermont
CHARLES GORDON, ALICIA GORDON, D.J. ENTERPRISES LLC, A.C. LAWN MOWING, DENIELLE GORDON, individually and doing business as DEN & COMPANY, Plaintiffs,
NEW ENGLAND CENTRAL RAILROAD, INC., Defendant.
AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION IN LIMINE TO EXCLUDE ANY OPINIONS ON
THE ALLEGED COST TO REBUILD THE DAMAGED BUILDING AND DENYING
WITHOUT PREJUDICE DEFENDANT'S MOTION IN LIMINE TO EXCLUDE
EVIDENCE OR TESTIMONY REGARDING THE CONSTRUCTION OF A NEW
BUILDING TO REPLACE THE DAMAGED BUILDING (DOCS. 98 &
CHRISTINA REISS, DISTRICT JUDGE
Charles, Alicia, and Denielle Gordon (the
"Gordons"), D.J. Enterprises LLC, and A.C. Lawn
Mowing, (collectively, "Plaintiffs") bring this
action against Defendant New England Central Railroad, Inc.
("Defendant"), alleging that Defendant's
failure to appropriately maintain track facilities caused a
railroad embankment adjacent to the Gordons' land located
at 68 Old River Road in Hartford, Vermont (the
"Property") to collapse following a July 1, 2017
rain event. Plaintiffs further allege that Defendant's
efforts to repair the embankment resulted in a trespass on
the Property. The First Amended Complaint ("FAC")
asserts the following claims against Defendant: trespass
(Count I); negligence (Count II); unlawful mischief in
violation of 13 V.S.A. § 3701 (Count III); and unjust
enrichment (Count IV).
seek to recover damages to repair a mixed-use building that
was damaged by the railroad embankment failure and which is
part of a series of structures on the Property (the
"damaged building"). Pending before the court is
Defendant's February 5, 2019 motion in limine to exclude
any opinions regarding the alleged cost to rebuild the
damaged building. (Doc. 98.) Plaintiffs opposed this motion
on February 18, 2019 and Defendant replied on March 4, 2019.
Following oral argument on May 31, 2019, the court granted
Defendant an opportunity to cross-designate portions of its
expert's deposition testimony. Defendant filed the
cross-designations on June 10, 2019, at which time the court
took the motion under advisement.
pending before the court is Defendant's July 2, 2019
motion in limine to exclude evidence or testimony regarding
the construction of a new building to replace the damaged
building. (Doc. 136.) Plaintiffs opposed this motion on July
16, 2019, and Defendant replied on July 18, 2019, at which
time the court took the motion under advisement.
are represented by R. Bradford Fawley, Esq., and Timothy C.
Doherty, Jr., Esq. Defendant is represented by Michael B.
Flynn, Esq., Matthew M. Cianflone, Esq., and Mark D.
Factual and Procedural Background.
Jonathan Ashley's Expert Witness Opinion.
seek to rely on the opinions of their expert witness Jonathan
Ashley regarding the cause of the railroad embankment failure
and the cost of repairing the damaged building. Mr. Ashley
has a Bachelor of Science degree in Environmental Engineering
from Rensselaer Polytechnic Institute and is a licensed
professional engineer as well as a licensed water system
operator. He is presently employed as a Senior
Engineer/Project Manager at Dubois & King, an engineering
consulting firm. Mr. Ashley estimated that he has worked on
over thirty construction projects over the course of his
twenty-six years as a consulting engineer. He has produced
cost estimates for approximately ten to twenty building
being retained by Plaintiffs, Mr. Ashley visited the Property
to observe and evaluate the damage caused by the railroad
embankment failure. He photographed the damaged building and
reviewed records provided by the Gordons regarding the
Property. He also reviewed the Town of Hartford's zoning
regulations and determined that, because more than 50% of the
building had been destroyed and condemned, any repair would
require that the entire building comply with current Flood
Hazard Area Regulations. Mr. Ashley concluded that rebuilding
would require that the entity conducting that rebuild
"first remove what remained of the building to its
foundation in order to access and remove the debris and then
build a retaining wall to hold back the embankment."
(Doc. 101-2 at 5, ¶ 11.)
square foot construction estimate methodology,  Mr. Ashley's
initial estimate of reconstruction costs totaled $1, 037, 000
with the cost of a retaining wall of $59, 000. This estimate
was "premised on the continued presence of the debris
and rip rap rocks pressing against and in the rear of the
Gordons' building[.]" Id. at 4, ¶ 10.
Mr. Ashley's preliminary estimate was not disclosed in
his initial expert witness report because it was an
"interim result in the process of developing [his] final
estimate." (Doc. 133 at 88.) Plaintiffs have represented
that they will not rely on Mr. Ashley's preliminary
estimate at trial.
Reliance on Tom Barden's Assembly-Level Cost
estimating construction costs, it is Mr. Ashley's
customary practice to obtain an assembly-level cost
estimate by subcontracting with another estimator.
In this case, Mr. Ashley subcontracted Tom Barden, the owner
and operator of Barden Consulting Services, to provide an
assembly-level estimate. Mr. Ashley testified that he had
worked with Mr. Barden to estimate construction costs for
other projects and had found his work to be reliable. When
asked about the assistance Mr. Barden provided in estimating
the cost of rebuilding the damaged building, Mr. Ashley
described that assistance as follows:
Q. ... [W]hy work with Barden? Why not just do the work
A. It's typical that the-that with more than one person
involved you have a better work product, for one thing. Tom
also has a good database of construction costs from building
projects throughout Vermont that he's developed over a
20-year period. He-he works with other architects, other
engineers around the state and is involved in a lot of-a lot
of different projects that give him access to the information
on the building construction costs that would be typical to
encounter in Vermont.
Q. Well, did you just send him off on his own to do whatever
he wanted and then just staple his report to your August 30th
Q. Tell us what you asked him to do.
A. I asked him to prepare an assembly-level estimate of the
building reconstruction costs to match the function and use
of what was there prior to construction. I gave him
information on the things that needed to be considered in
that we had-in that what we had found out from the Town of
Hartford and their-their regulations about the flood hazard
regulations that would apply, that impacts the costs in terms
of the floor level needing to be raised above the-the flood
elevation. Those are a few things.
Q. Okay. Other than the direction you gave him, did you
actually work with Mr. Barden on this project?