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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.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION IN LIMINE TO PRECLUDE PLAINTIFFS' EXPERT HARVEY H. STONE, P.E. (DOC. 86)

          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).

         Pending before the court is Defendant's January 14, 2019 motion in limine to preclude Plaintiffs' expert Harvey H. Stone, P.E. (Doc. 86.) On February 27, 2019, Plaintiffs opposed the motion, and Defendant replied on March 13, 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.

         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.

         Harvey H. Stone is a professional engineer who serves as the Executive Vice President of Stone Consulting, Inc., a consulting firm that specializes in railroad feasibility studies, inspection, and design. He obtained his Professional Engineer's license in 1971 in Pennsylvania and has been practicing civil engineering for more than forty-five years. He is licensed as a professional engineer in Vermont as well as thirty additional states and has twenty years of experience in design, rehabilitation, and construction inspection of railroad tracks. Mr. Stone asserts that he has taken "a number of courses given by the Federal Railroad Administration and American Railway Engineering and Maintenance-of-Way Association (AREMA) in track inspection and FRA Track Safety Standards Part 213 Subpart A to F." (Doc. 86-1 at 4-5.) He has been accepted as a railroad construction and maintenance expert by the Surface Transportation Board and has appeared as an expert witness at trial in two cases within the last four years.

         On August 30, 2018, Mr. Stone provided a seven-page expert witness report (the "Expert Report") the stated purpose of which was to "determine the standard of care to which NECR was required to follow with regard to FRA Part 213 track inspections for drainage; whether NECR met or violated that standard of care; and whether any violation of that standard of care was the cause of the embankment collapse." (Doc. 86-1 at 5.) In developing his opinions, Mr. Stone stated that he reviewed the Code of Federal Regulations, Title 49, Track Safety Standards Part 213, the expert report of Jonathan Ashley, P.E., as well as the briefs, deposition transcripts, and judicial opinions in this case. Mr. Stone describes his conclusions as follows:

It is my opinion to a reasonable degree of engineering certainty that the New England Central Railroad ignored the finding from the culvert inspection team and allowed a drainage structure to remain obstructed. Further, given the features of the area concerned, including the steep railroad embankment, by having blocked the drop manhole and by providing insufficient drainage ditches, NECR failed to maintain the drainage facilities to accommodate expected water flow for the area concerned. In doing so, they violated Code of Federal Regulations, Title 49, Track Safety Standards Part 213, Subpart B §213.33 Drainage. It is also my opinion based upon the report prepared by Jonathan D. Ashley, PE, that these violations of the standards of care established by Subpart B §213.33 were the cause of the collapse of the embankment. It is my opinion that if the standards of care had been met, the storm water would have been adequately drained from the roadbed and areas immediately adjoining the roadbed so that the embankment would not have failed.

         Id.at 9-10.

         On December 4, 2018, Mr. Stone produced a supplemental expert report (the "Supplemental Report"), the stated purpose of which was to "determine what effect the Rail America Track Inspection document provided by NECR in additional discovery submitted after the date on my Expert Report has on my earlier opinions provided in my original Expert Report." (Doc. 86-2 at 4.) In the Supplemental Report, Mr. Stone opines:

[I]t is my further opinion to a reasonable degree of engineering certainty that the Railamerica Track Inspection document established a safety standard of care applicable to NECR between 2006 and July 1, 2017 and that NECR violated the standard of care in the safety standards and procedures set forth in the Railamerica Track Inspection document as described above. It is also my opinion based upon the report prepared by Jonathan D. Ashley, PE, that these violations of the standards of care were the cause of the collapse of the embankment. It is my opinion that if the standards of care had been met, the storm water would have been adequately drained from the roadbed and areas immediately adjoining the roadbed so that the embankment would not have failed.

Id. at 6-7.

         II. Conclusions of Law and Analysis.

         Defendant argues that Mr. Stone's opinions must be excluded for the following reasons: (1) he improperly usurps the court's role in determining the law and the jury's role in applying the law to the facts; (2) his testimony consists of legal conclusions; (3) he did not use a proper methodology to develop his opinions; (4) he is not qualified to offer regulatory opinions; (5) he invents his own regulatory definition of "expected water flow"; and (6) his opinions are not based on facts in the record. Plaintiffs counter that Mr. Stone's opinions are based on an ...


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