Gordon v. New England Cent. R.R.

Decision Date10 October 2019
Docket NumberCase No. 2:17-cv-00154
CourtU.S. District Court — District of Vermont

doing business as DEN & COMPANY, Plaintiffs,

Case No. 2:17-cv-00154


October 10, 2019


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 for summary judgment. (Doc. 85.) On April 26, 2019, Plaintiffs opposed the motion, and on May 26,

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2019, Defendant replied. A hearing was held on May 31, 2019, after which 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 Mark D. Oettinger, Esq., Michael B. Flynn, Esq., and Matthew M. Cianflone, Esq.

I. The Factual Record Before the Court.

A. Whether Defendant's Contested Exhibits Are Admissible.

Plaintiffs object to twenty-eight exhibits cited in support of Defendant's Motion for Summary Judgment.1 The majority of Plaintiffs' objections fall into three categories: (1) the exhibit is irrelevant to the extent that it addresses Plaintiffs' trespass claim because the court has already found Defendant liable for trespass; (2) the exhibit is not authenticated; or (3) the exhibit contains inadmissible hearsay. Defendant responds that Plaintiffs' objections are premature and that all of its evidence will be admissible at trial when presented in the proper format.

At the summary judgment stage, a party can support a factual assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials[.]" Fed. R. Civ. P. 56(c)(1)(A). While the content of the evidence submitted to support or dispute a fact must be admissible, "the material may be presented in a form that would not, in itself, be admissible at trial." Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (internal quotation marks omitted).2 Rule 56(c)

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of the Federal Rules of Civil Procedure affords the opposing party the opportunity to "object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). "The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated." Id., advisory committee's note to 2010 amendment.

The sole basis for Plaintiffs' objections to nineteen of Defendant's exhibits is that "to the extent [the exhibit] is aimed at establishing a defense to Plaintiffs' trespass claim it is irrelevant because the court has already found [Defendant] liable for trespass. Irrelevant evidence is not admissible." (Doc. 118 ¶¶ 2, 5, 7, 10-14, 16, 18-20, 22-27, 29.) (citing Fed. R. Evid. 402) In response, Defendant asserts that "no response is required" to Plaintiffs' "blanket objections" because the "trespass claim . . . has been decided by the [c]ourt." (Doc. 125 at 3.) Plaintiffs understandably interpret this as a "concession[.]" (Doc. 127 at 2.) The court agrees. To the extent Defendant's exhibits pertain only to Plaintiffs' trespass claim, they will be disregarded.

Of the nine remaining disputed exhibits, Plaintiffs object to seven exhibits because of a lack of authentication. "The bar for authentication of evidence is not particularly high." United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (citation omitted). It "'is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.'" Id. (quoting Fed. R. Evid. 901(a)). "The testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient to satisfy this standard." Id. (citing Fed. R. Evid. 901(b)(1)). In response to Plaintiffs' objections, Defendant identified either the creator of each exhibit or a person with knowledge of the document's creation who will properly authenticate the document at trial. Because

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Defendant proffered sufficient evidence for authentication of Exhibits 2, 5, 6, 10, 19, 30, and 32, the court will not exclude them on that basis. Plaintiffs, however, further object to these same exhibits, as well as Exhibit 35, on the ground that they contain inadmissible hearsay. Defendant responds that the exhibits will be admissible at trial pursuant to a hearsay exception or through live witness testimony.

Exhibit 2 is a July 24, 2017 letter from Governor Phil Scott to President Donald Trump seeking a Presidential Disaster Declaration as a result of the July 1, 2017 rain event. It consists of a four-page letter accompanied by a four-page "Request For Presidential Disaster Declaration Major Disaster Or Emergency" form supported by a seven-page enclosure containing various spreadsheets of damage estimates. While portions of the document may fall within the public records exception, Fed. R. Evid. 803(8), the court cannot conclude that its entire contents are admissible and relevant. The court thus considers Exhibit 2 only for the fact that the State of Vermont made a request for a Presidential Disaster Declaration related to the July 1, 2017 rain event.

Exhibit 5 is a twenty-slide presentation entitled "New England Central Railroad Mainline [W]ashout 1 July 2017." It contains statements regarding and photographs of the damage to Defendant's railroad. The document itself appears to fall within the business records exception, Fed. R. Evid. 803(6), and Defendant asserts that its employees could "provid[e] whatever evidentiary foundation is needed for final admission[.]" (Doc. 125 at 4.) Exhibit 5 is therefore properly before the court.

Exhibit 6 is a FEMA Preliminary Damage Assessment Report summarizing the estimated costs of public assistance to address damage in Vermont caused by the July 1, 2017 rain event. Because the document appears to be a public record admissible under Fed. R. Evid. 803(8), it is properly before the court although its entire contents do not appear to be relevant. The court considers the document solely for the fact that a FEMA Preliminary Damage Assessment was rendered.

Exhibit 19 is a map labelled "Storm Event - Summary of Trackrow Damage" with captioned photographs of railroad tracks superimposed over a map of the Hartford, Vermont area. Defendant represents that its employee, David Cuthbertson, gave sworn

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testimony in his deposition that he created the document on or about July 3, 2017 and Defendant offers the document in conjunction with Mr. Cuthbertson's testimony. Exhibit 19 is therefore admissible.

Exhibit 30 is a "Digital Track Notebook Defect Report." This document is a business record under Fed. R. Evid. 803(6) provided Defendant can lay a proper foundation for it at trial and is therefore admissible.

Exhibit 32 is a November 28, 2017 letter from John T. Seguin, Assistant Chief Counsel for Safety at the Federal Railroad Administration ("FRA"), to attorneys at the law firm of Steptoe & Johnson LLP providing the FRA's opinion on the proper interpretation of 49 C.F.R. § 213.33. Defendant represents that this document is not offered to prove the truth of its contents but to "provid[e] guidance as to the meaning and/or interpretation" of regulatory language. (Doc. 125 at 8.) Evidence that would "communicat[e] a legal standard[, whether] explicit or implicit[,]" is not admissible. Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992); see also Mola Dev. Corp. v. United States, 516 F.3d 1370, 1379 n.6 (Fed. Cir. 2008) (affidavit of former government official proffering interpretation of regulation deserved no weight because interpretation is an issue of law). The court will therefore disregard Exhibit 32.

Exhibit 33 is a January 2017 Track and Rail and Infrastructure Integrity Compliance Manual from the FRA's Office of Railroad Safety. Plaintiffs object to its admission on the ground that it contains legal opinions as well as a specific disclaimer that "[i]ndented paragraphs are not to be construed as regulatory language in any manner." (Doc. 85-33 at 5.) Defendant responds that the document is offered to provide guidance as to the meaning or interpretation of regulatory language. Because evidence that communicates a legal standard or regulatory interpretation is inadmissible, the court will disregard Exhibit 33. See Hygh, 961 F.2d at 364.

Exhibit 35 is a July 2, 2017 report entitled "Structural Assessment of Building Damage[,] 68 Old River Road, White River Jct., VT" prepared by Professional Engineer Timothy L. Schaal and provided to the Gordons opining that "[g]iven the structural condition of the building and the on-going work on the railroad embankment, the western

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garage/maintenance bays and the hair salon and apartment above are not safe to occupy." (Doc. 85-35 at 3.) As this document...

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