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Gordon v. New England Central Railroad, Inc.

United States District Court, D. Vermont

August 26, 2019

CHARLES GORDON, ALICIA GORDON, D.J. ENTERPRISES LLC, A.C. LAWN MOWING, DENIELLE GORDON, individually and doing business as DEN & COMPANY, Plaintiffs,
v.
NEW ENGLAND CENTRAL RAILROAD, INC., Defendant.

         OPINION 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 & 136)

          CHRISTINA REISS, DISTRICT JUDGE

         Plaintiffs, 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).

         Plaintiffs 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.

         Also 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.

         Plaintiffs 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. Oettinger, Esq.

         I. Factual and Procedural Background.

         A. Jonathan Ashley's Expert Witness Opinion.

         Plaintiffs 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 construction projects.

         After 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.)

         Using a square foot construction estimate methodology, [1] 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.

         B. Reliance on Tom Barden's Assembly-Level Cost Estimate.

         When estimating construction costs, it is Mr. Ashley's customary practice to obtain an assembly-level cost estimate[2] 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 yourself?
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 report?
A. No.
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?
A. Yes.
Q. Physically?
A. ...

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