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Gordon v. New England Central Railroad, Inc.

United States District Court, D. Vermont

August 28, 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.

          ENTRY ORDER DENYING PLAINTIFFS' MOTION TO EXCLUDE LATE DISCLOSED EXPERT TESTIMONY OF DAVID CUTHBERTSON (DOC. 137)

          Christina Reiss, District Judge United States District Court

         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).

         Pending 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.

         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.

         The 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.

         The 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 Property.

         Defendant's 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.

         Defendant 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 thereafter.

         On 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.

         On 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.)

         On June 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 ...

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