Gordon et al v. New England Central Railroad, Inc.

Filing 147

ORDER granting 86 Motion in Limine to Preclude Expert Harvey Stone, P.E. Signed by Judge Christina Reiss on 8/28/2019. (jbr)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
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.

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21H AUG 28 AH 11: 3 I

Case No. 2: 17-cv-00154

OPINION AND ORDER GRANTING DEFENDANT'S MOTION IN LIMINE TO
PRECLUDE PLAINTIFFS' EXPERT HARVEY H. STONE, P.E.
(Doc. 86)
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 ("F AC") asserts the following claims against Defendant: trespass
(Count I); negligence (Count II); unlawful mischief in violation of 13 V.S.A. § 3701
(Count Ill); 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 crossdesignate portions of its expert's deposition testimony. Defendant filed the crossdesignations 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. Gettinger, 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:

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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

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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 extensive factual record and that, after assessing the
facts, Mr. Stone appropriately relied upon his training and experience to formulate his
opm10ns.
"If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue an expert may testify thereto."

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) (emphasis and internal
quotation marks omitted). In determining the reliability of expert testimony, the district
court must engage in "a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93.
Relevant factors include "the theory's testability, the extent to which it 'has been
subjected to peer review and publication,' the extent to which a technique is subject to
'standards controlling the technique's operation,' the 'known or potential rate of error,'
and the 'degree of acceptance' within the 'relevant scientific community."' United States

v. Romano, 794 F.3d 317, 330 (2d Cir. 2015) (quoting Daubert, 509 U.S. at 593-94).
However, "the test of reliability is flexible, and Daubert' s list of specific factors neither
necessarily nor exclusively applies to all experts or in every case." Restivo v.

Hessemann, 846 F.3d 547,576 (2d Cir. 2017), cert. denied, 138 S. Ct. 644 (2018)
(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)) (internal quotation
marks omitted).
In applying Rule 702, the district court functions as a gatekeeper, ensuring "that an
expert's testimony both rests on a reliable foundation and is relevant to the task at hand."

Amorgianos v. Nat'/ R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (citing
Daubert, 509 U.S. at 597) (internal quotation marks omitted). "The consideration has
been aptly described ... as one of 'fit.' 'Fit' is not always obvious, and scientific validity
for one purpose is not necessarily scientific validity for other, unrelated purposes."
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Daubert, 509 U.S. at 591 (citation omitted). The party proffering expert testimony bears
the burden of establishing its admissibility "by a preponderance of proof." Id. at 592
n.10.
Neither Mr. Stone's Expert Report nor his Supplemental Report contain an
adequate explanation of the methodology or reasoning that he relied upon in reaching his
conclusions. Instead, he appears to rely almost exclusively on the opinions of Mr. Ashley
and the observations of Defendant's employee, Jonathan Allbee. Mr. Stone opines that
Defendant breached the applicable standard of care set forth in 49 C.F.R. § 213.33 and
the Railamerica Track Inspection document by failing to remove an obstruction from a
culvert drain and that this breach caused the railroad embankment to collapse. However,
in his reports, Mr. Stone fails to "explain precisely how [he] went about reaching [his]
conclusions and point to some objective source ... to show that [he] ha[ s] followed the
scientific method, as it is practiced by (at least) a recognized minority of scientists in their
field." Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995).
In determining whether expert testimony will be helpful to the factfinder, the court
must also consider whether the testimony will "usurp either the role of the trial judge in
instructing the jury as to the applicable law or the role of the jury in applying that law to
the facts before it." United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999) (citation
omitted). The Second Circuit "is in accord with other circuits in requiring exclusion of
expert testimony that expresses a legal conclusion." Hygh v. Jacobs, 961 F.2d 359, 363
(2d Cir. 1992). "The meaning of federal regulations is not a question of fact, to be
resolved by the jury after a battle of experts. It is a question of law, to be resolved by the
court." Bammerlin v. Navistar Int'/ Transp. Corp., 30 F.3d 898, 900 (7th Cir. 1994).
Mr. Stone's opinion that 49 C.F.R. § 213.33 sets forth the "standard of care to
which the NECR was subject[,]" (Doc. 86-1 at 8), is a legal conclusion that is the
province of the court. See Demag v. Better Power Equip., Inc., 2014 VT 78, 16, 197 Vt.
176, 179, 102 A.3d 1101, 1105 (holding that in a negligence claim, "[t]he existence ofa
duty is primarily a question of law") (internal quotation marks omitted); In re Rezulin

Prods. Liab. Litig., 309 F. Supp. 2d 531, 558 (S.D.N.Y. 2004) (excluding a doctor's

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expert testimony regarding the legal duties owed to patients because this testimony
"communicate[d] a legal standard [that] would encroach on the court's prerogative to
instruct on the law"). Similarly, Mr. Stone's opinion that a fifty-year rain event is "not
outside the range of 'expected [storm] water flow for the area concerned' as required for
adequate drainage pursuant to [49 C.F.R. §] 213.33[,]" (Doc. 86-1 at 9), is inadmissible
as it not only offers a legal definition of the applicable federal regulation but appears to
offer a meteorological opinion as well. See Haager v. Chicago Rail Link, LLC, 232
F.R.D. 289,294 (N.D. Ill. 2005) (holding that an expert's opinion regarding the
applicability and meaning of a provision of the Code of Federal Regulations to a railroad
was an inadmissible legal opinion);
To the extent Mr. Stone seeks to opine that Defendant violated 42 C.F.R. § 213.33
by failing to remove a metal plate from a culvert and that Defendant's alleged violation
of 42 C.F.R. § 213.33 caused the embankment to collapse, these are ultimate conclusions
that are exclusively the province of the jury. "[A]lthough an expert may opine on an
issue of fact within the jury's province, he may not give testimony stating ultimate legal
conclusions based on those facts." United States v. Bilzerian, 926 F.2d 1285, 1294 (2d
Cir. 1991); see also Rieger v. Or/or, Inc., 427 F. Supp. 2d 99, 104 (D. Conn. 2006)
(excluding an expert opinion that "does not proffer any specialized knowledge[] and
invokes legal standards" because it "attempts to substitute [his] judgment for the jury's")
(citation omitted); Neigum v. BNSF Ry. Co., 2008 WL 11378833, at *3 (D.N.D. Apr. 10,
2008) (excluding the expert testimony of a railway safety consultant "as to violations of
specific legal standards or legal conclusions, i.e., whether the locomotive was in violation
of the 'Locomotive Inspection Act' or Locomotive Safety Standards" because "[a]n
expert witness is prohibited from expressing an opinion as to whether the law [or a]
safety standard was violated"); S.E.C. v. U.S. Envtl., Inc., 2002 WL 31323832, at *4
(S.D.N.Y. Oct. 16, 2002) ("While the expert can make factual conclusions that embrace
an ultimate issue to be decided by the fact-finder, the expert cannot give testimony stating
ultimate legal conclusions based upon those facts, nor can that testimony track the
language of the statute or the law that the defendants are accused of violating.").
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Even were an ultimate issue opinion admissible, in this case, Mr. Stone has not
adequately explained the methodology or reasoning supporting his opinions. Instead, he
acts as a mere conduit for Plaintiffs' version of the operative facts. See Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 146 (1997) ("[N]othing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence that is connected to existing
data.only by the ipse dixit of the expert."); Minasian v. Standard Chartered Bank, PLC,
109 F.3d 1212, 1216 (7th Cir. 1997) ("An expert who supplies nothing but a bottom line
supplies nothing of value to the judicial process."); Rotman v. Progressive Ins. Co., 95 5
F. Supp. 2d 272, 283 (D. Vt. 2013) (holding that an expert witness may not "act[] as a
conduit for another witness's testimony in the guise of an expert's opinion").

CONCLUSION
For the foregoing reasons, Defendant's motion in limine to preclude the opinions
of Harvey H. Stone as an expert witness for purposes of summary judgment and at trial is
GRANTED. (Doc. 86.)

JI--.

SO ORDERED.

Dated at Burlington, in the District of Vermont, this..?fday of August, 2019.

~udge
United States District Court

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