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.
ENTRY ORDER DENYING PLAINTIFFS' MOTION TO EXCLUDE
LATE DISCLOSED EXPERT TESTIMONY OF DAVID CUTHBERTSON (DOC.
Christina Reiss, District Judge United States District Court
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).
before the court is Plaintiffs' July 2, 2019 motion to
exclude late disclosed testimony of David Cuthbertson. (Doc.
137.) Defendant opposed the motion on July 16, 2019 and
Plaintiffs replied on July 29, 2019, at which time the court
took the pending 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.
Gordons purchased the Property in 2009 for $150, 000. Three
buildings are situated on the Property. (1) a 1,
120-square-foot, three-bay garage; (2) a 1, 500-square-foot,
five-bay garage; and (3) a 6, 492-square-foot, mixed-use
building. Prior to July 1, 2017, the mixed-use building was
comprised of garage bays, warehouse storage space, a
residential apartment, and commercial space that served as a
day-care center and a beauty salon.
Property is situated directly adjacent to Defendant's
mainline railroad tracks. On July 1, 2017, more than four
inches of rain fell in a twelve-hour period in Hartford,
Vermont. Following the July 1, 2017 rain event, the railroad
embankment adjacent to the Property collapsed, causing rocks
and debris to enter and damage the mixed-use building on the
right-of-way includes three railroad culverts: a culvert at
approximately Mile Post 16.23; a drop inlet culvert located
at Mile Post 16.28 (the "Drop Inlet Culvert"); and
a box culvert at Mile Post 16.32. On July 1, 2017, a metal
plate covered the top of the open hole on the Drop Inlet
Culvert. Plaintiffs allege that Defendant was aware that the
metal plate obstructed drainage through the Drop Inlet
Culvert prior to July 1, 2017, but negligently failed to
remove or replace it. Plaintiffs further allege that, on July
1, 2017, the metal plate obstructed the flow of water into
the culvert and caused the railroad embankment above the
Property to collapse, ultimately resulting in damage to the
mixed-use building on the Property.
seeks to introduce the expert witness testimony of David
Cuthbertson to establish the cause of the railroad embankment
collapse on July 1, 2017. Mr. Cuthbertson is the Assistant
Vice President of Engineering at Genesee & Wyoming
Railroad Services, Inc., a subsidiary services company of
Defendant's parent company, Genesee & Wyoming, Inc.
He has a Bachelor of Science degree in civil engineering from
Northeastern University and has worked in the railroad
industry for the majority of his professional career. On July
2, 2017, Mr. Cuthbertson visited the railroad right-of-way
adjacent to the Property to inspect the damage wrought by the
July 1, 2017 rain event. He was also involved in the repair
of the collapsed embankment that took place shortly
April 4, 2018, Plaintiffs deposed Mr. Cuthbertson, who
testified that the railroad embankment had not collapsed
previously and that the metal plate had been situated over
the Drop Inlet Culvert for years without issue. He described
his observations of the culverts surrounding the
Defendant's right-of-way following the July 1, 2017 rain
event and opined that the embankment had collapsed because
the box culvert had become clogged with debris, preventing
water from draining properly.
November 30, 2018, the deadline for disclosure of expert
witnesses, Defendant designated Mr. Cuthbertson as a
"Non-retained Expert" and stated that "Mr.
Cuthbertson may be called to offer opinions to a reasonable
degree of engineering and professional certainty regarding
his observations of the embankment collapse and the source of
the flood water and the extent of damage that resulted from
the July 2017 rain event. Mr. Cuthbertson's opinions are
based on his education, training and experience, as well as
his experience in railroad engineering structures and
first[-]hand observations." (Doc. 137-2 at 5-6.)
11, 2019, Plaintiffs asked Defendant to identify any opinions
that it anticipated Mr. Cuthbertson would offer at trial. On
June 24, 2019, Defendant produced a "Supplemental
Disclosure for Non-retained Expert Dave Cuthbertson"
which states in full:
[New England Central Railroad, Inc. ("NECR")] has
identified Dave Cuthbertson as a non-retained expert in this
matter. As an engineer with extensive railroad experience,
NECR reserves the right to elicit opinion testimony from him
at trial on issues related to his education, training,
experience and based on his first-hand, in-person
observations of the embankment and railroad tracks and
property at issue, all of which he testified to during his
April 4, 2018 deposition. Any opinions will be in line and/or
consistent with his prior deposition testimony and may
include the following:
• the July 2017 rain event was severe in terms of both
the rain fall, the intensity of the storm and the ...