Lewis-Smith Corporation v. Genesee & Wyoming, Inc.

Filing 82

ORDER that defendant's 65 Motion to Exclude Meteorological Opinions of Plaintiffs Expert is GRANTED as further set out in the order. Signed by Honorable Judge W. Harold Albritton, III on 4/5/2012. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION

LEWIS-SMITH CORPORATION, an
Alabama Corporation,
Plaintiff,
v.
CHATTAHOOCHEE BAY RAILROAD,
INC., et. al.,
Defendants.

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CIVIL ACTION NO. 1:10-CV-786-WHA
(WO)

ORDER

This cause is before the court on Defendants’s Motion to Exclude Meteorological
Opinions of Plaintiff’s Expert (Doc. # 65). This motion alleges that the Plaintiff’s expert,
Thomas Destafney, a civil engineer, is not qualified to render an expert opinion as to the
categorization of the rain event that struck Dothan, Alabama in March 28, 2009. The Defendant
contends that a determination of this rain event’s categorization will be instrumental in
determining the Defendant’s liability as to Plaintiff’s claims. Accordingly, expert opinions as to
the categorization of this rain event will be important to aid a jury in making its fact
determination.
When faced with a challenge to an expert’s qualification to express an opinion pursuant
to Federal Rule of Evidence 702, this court must “act as a gatekeeper to insure that speculative
and unreliable opinions do not reach the jury.” McClain v. Metabolife Intern., Inc., 401 F.3d
1233, 1237 (11th Cir. 2005) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579, 589 n.7, 597 (1993)). In order to determine the validity and appropriate scope of an expert
witness's testimony, this court is bound by the Daubert standard. See Quiet Tech. v.
Hurel–Dubois UK Ltd., 326 F.3d 1333, 1340–41 (11th Cir.2003). When sitting as the
“gatekeeper” for expert testimony, the Eleventh Circuit requires this court to determine whether:
(1) the expert is qualified to testify competently regarding the matters he intends
to address; (2) the methodology by which the expert reaches his conclusions is
sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the application of scientific,
technical, or specialized expertise, to understand the evidence or to determine a
fact in issue.
Quiet Tech, 326 F.3d at 1340–41.
The Defendant points to a number of different reasons as to why Destafney is unqualified
to render his opinion that the 24-hour period for the March 28, 2009 rain event was only a 25year return, “an intensity that would not typically overwhelm an 8' diameter culvert.” The first
reason that the Defendant alleges is that Destafney is a civil engineer but admits that he is not an
expert in meteorology. He testified in his deposition that he had taken some courses as part of
the requirement to get his amateur pilot’s license, but he admitted that he is not a meteorologist,
that he has never rendered an opinion specifically related to meteorology, that he is not trained to
render analysis of weather events like the one that occurred on March 28, 2009, and that he does
not plan to give any definitive opinions in regard to weather or meteorology.
The Defendant’s second allegation is that Destafney lacked sufficient information to
render a scientifically valid opinion. More specifically, the Defendant did not know the actual
duration of the rain event that befell Dothan on the day in question. Instead of limiting his
analysis to the relevant portion of March 28, 2009 for which the rain event actually occurred,

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which appears to be a less than 24-hour time frame, Destafney considered the rainfall
accumulation from the rain event over a 24-hour period. As Destafney conceded in his
deposition, the actual temporal length of a rain event is a critical factor in determining the
categorization of that rain event. The Defendant explains, and Destafney appears to concede,
that the proper methodology for determining the categorization of a rain event is to compare the
volume of the rainfall from the event in inches with the duration of the event. Because Destafney
relied on a 24-hour rainfall atlas instead of a 6-hour rainfall atlas, which the Defendant contends
was appropriate, he reached the result that the March 28, 2009 storm was a 25-year storm instead
of a 100-year storm. The difference is considerable in that a 100-year rain event is one that is not
expected to occur more than once every 100 years while a 25-year rain event is one that
unsurprisingly is not expected to occur more than once every 25 years. Essentially, the
Defendant takes issue with the fact that Destafney knew that the duration of the rain event
mattered in the determination of categorization, and yet he chose to rely on a 24-hour rainfall
atlas instead of a more appropriate shorter duration rainfall atlas in forming his opinion.
The Plaintiff contests this motion and raises two arguments in support of its position.
First, the Plaintiff argues that the reading of a rainfall atlas is something that requires no
specialized training. In other words, given the relevant pieces of information–the location of the
rain, the length of time it rained, and the amount of rain that fell–any lay person could
characterize a rain event. The Plaintiff’s second argument consists of two interconnected parts.
The first is that deposition testimony from some of Defendant’s witnesses, who were engineers
like Destafney, consisted of their opinions as to the characterization of the rain event. The
second part is that if those engineers are allowed to testify as to rain event categorization, then so
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too should Destafney. Having fully considered both the Defendant’s and Plaintiff’s arguments,
this court will now turn to the three factor test from Quiet Tech in order to make its Rule 702
determination.
Turning to the first factor from Quiet Tech, which concerns whether Destafney is
qualified to testify competently about matters of meteorology, this court finds that Destafney is
not. By his own admission, he is not an expert in meteorology and has only minimal training in
meteorology which he obtained while earning an amateur pilot’s license. Therefore, Destafney
cannot meet this first factor.
Turning to the second factor, which concerns whether Destafney’s methodology is
sufficiently reliable as to determining the categorization of the March 28, 2009 rain event, the
court finds that, while Destafney appeared to follow common meteorological techniques for
determining the categorization of the rain event, it appears that he utilized the wrong rainfall atlas
in his analysis. Destafney admitted in his deposition that in order to determine the categorization
of the rain event he needed to know the amount of rainfall and the actual amount of time it was
raining. He did not look to see how long it actually rained but instead used a 24-hour period in
his calculations. The Defendant alleges that the period of rainfall is undisputedly six hours, but
the Plaintiff argues that this time frame will be contested at trial. However, it is undisputed that
Destafney’s deposition testimony explains that he knew that it did not rain the entire day, and
therefore, his incorrect usage of a 24-hour period in his calculations prevents his methodology
from meeting the reliability standard required by Rule 702.
Lastly, turning to the third factor, which concerns whether Destafney’s testimony will
assist the trier of fact in understanding the categorization of the March 28, 2009 rain event
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through the use of his specialized expertise or scientific knowledge, the court finds that
Destafney’s particular expertise and scientific knowledge will not assist the trier of fact.
Destafney appears qualified to discuss matters touching civil engineering, but he can provide
nothing more than a lay person’s opinion as to the rain event. All Destafney did was select a
rainfall atlas, look up the 24-hour rainfall total for March 28, 2009, and then locate Dothan,
Alabama on the atlas to characterize the March 28, 2009 rain event. While it may be true that
the selection of the appropriate criteria–rain duration and total rain fall–requires some
meteorological specialization, the reading of a rainfall atlas given those criteria requires no
specialized skill. In other words, Destafney’s reading of a rainfall atlas is something that any
member of the jury is capable of doing. In the absence of any meteorological training or
expertise, Destafney’s categorization of the rain event does not assist the trier of fact in
categorizing it.
Because Destafney does not meet the standard set forth by the Eleventh Circuit in Quiet
Tech, this court finds that he lacks the qualifications to provide expert testimony in the field of
meteorology. Accordingly, Destafney is barred from offering expert testimony as to the
categorization of the March 28, 2009 rain event that struck Dothan, Alabama.1

CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Defendant’s Motion to
Exclude Meteorological Opinions of Plaintiff’s Expert is GRANTED.
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This court notes that other similarly situated engineers, that is those without any
meteorological training, would be similarly barred from offering expert opinions as to the
categorization of the March 28, 2009 rain event.
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Done this 5th day of April, 2012.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
UNITED STATES DISTRICT JUDGE

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