Reese v. CSX Transp., Inc., CV 118-215
| Decision Date | 24 September 2020 |
| Docket Number | CV 118-215 |
| Parties | RANDY REESE, JESSICA REESE, and LEONARD MARSHALL, Plaintiffs, v. CSX TRANSPORTATION, INC., Defendant. |
| Court | U.S. District Court — Southern District of Georgia |
Before the Court are several motions: (1) Defendant's motion for summary judgment (Doc. 43); (2) Plaintiffs' motion to exclude Mr. Thomas Robertson's supplemental expert reports (Doc. 54); (3) Plaintiffs' motion to exclude testimony of John Kerns, one of Defendant's Federal Rule of Civil Procedure 30(b)(6) witnesses (Doc. 56); (4) Defendant's motion to exclude expert testimony of Dr. Brian Wellington (Doc. 60); and (5) Plaintiffs' motion to strike conclusions of law contained in Defendant's statement of undisputed material facts and conclusions of law and Exhibit Eleven to Defendant's motion for summary judgment (Doc. 72). The Court addresses each motion herein.
Kudzu is as firmly rooted in Georgia horticultural lore as peanuts and peaches, but far more nefarious.
Green, mindless, unkillable ghosts
In Georgia, the legend says
That you must close your windows
At night to keep it out of the house
The glass is tinged with green, even so . . . .
James Dickey, Kudzu, THE NEW YORKER, May 18, 1963, at 44.
Plaintiffs Jessica and Randy Reese owned real property in Martinez, Georgia, at 4078 Harden Court. (Def.'s Statement of Undisputed Material Facts ("SOUMF"), Doc. 44, ¶ 1 (undisputed)2.) Plaintiff J. Reese purchased the home in 2006. (Id. (undisputed).) Plaintiff Marshall has owned the property located at 4080 Harden Court, Martinez, Georgia, since 2000. (Id. ¶ 2 (undisputed).)
Defendant operates several railroads, including one track that runs through Columbia County, Georgia. (Kerns 30(b)(6) Dep. Ex. 3, Doc. 57-3.) Defendant's right-of-way travels adjacent to Plaintiffs' property. (Def.'s SOUMF, ¶ 5 (undisputed).) The right-of-way extends sixty feet from the center of the track oneither side. An embankment slopes away from the railway. (Robertson Decl., Doc. 48, ¶¶ 6, 9.)
At railroad milepost AK 470.54, a culvert3 is planted beneath the railroad and embankment ("Culvert"). (Def.'s SOUMF, ¶ 6 (undisputed).) The Culvert is twenty-two feet below the rail, extends ninety-six feet in length, and the Culvert's inlet is located near the back of Plaintiffs Jessica and Randy Reese's Property. (Kerns Decl., Doc. 47, ¶¶ 6, 9.) The Culvert's diameter measures forty-eight inches. (Def.'s SOUMF, ¶ 6 (undisputed).)
On July 26, 2017, rain fell in Columbia County at Defendant's right-of-way and Plaintiffs' property. (Def.'s SOUMF, ¶ 12 (undisputed).) The significance of the rain event, specifically, the rainfall total, however, is feverishly disputed. (Id. ¶ 13 (undisputed).) As discussed in greater detail below, the Parties contend the rainfall at the location at issue on July 26, 2017, totaled, from the Court's understanding, anywhere between 3.444 and 4.93 inches. (Wellington Apr. 10, 2018 Technical Mem., Doc. 49-3, at 5; Robertson June 14, 2019 Engineering Report, Doc. 50-1, at 8-9.) The Parties also agree that of the total, a short duration of intense rainfall occurred, including at least one-hour of heavy rainfall. (Wellington July 15, 2019 Technical Mem., Doc. 49-4, at 2; Robertson Aug. 14, 2019 Engineering Report, Doc. 50-2, at 5-6, 8.) The Parties do not entirely agree on the one-hour period, but it indisputably falls sometime between 2:50 PM and 4:05 PM. (Robertson Aug. 14, 2019 Engineering Report, at 5; Conway June 17, 2019 Meteorological Conditions Report, Doc. 45, at 28-30.) The opinions of the relevant one-hour rainfall total range from 2.98 to 3.24 inches. (Wellington July 15, 2019 Technical Mem., at 2; Robertson Aug. 14, 2019 Engineering Report, at 5.) The Parties further dispute the return frequency of a similar rain event, with recurrence rates ranging from thirty-one to five hundred years depending on metrics evaluated. (Wellington July 15, 2019 Technical Mem., at 2; Robertson Nov. 13, 2019 Engineering Report, Doc. 50-3, at 7.)
The Reese family was in their home on July 26, 2017, when the rain began. (R. Reese Aff., Doc. 67, ¶ 6.) The water rapidly rose in the yard, moving the Reese's shop outside of their home off its foundation. (Id. ¶¶ 6, 7.) Shortly thereafter, water began to infiltrate the house. (Id. ¶ 7.) As the water level increased, the Reese house shifted off the foundation. (Id. ¶¶ 9, 14.) When the water receded sufficiently for the Reese Plaintiffsto return to their home, they found standing water in the house as well as damage to their real and personal property. (Id. ¶ 12, 13, 14, 18.)
Albeit to a lesser degree, Plaintiff Marshall also experienced flooding. (Marshall Aff., Doc. 69, ¶ 8.) He too sustained damage to his real and personal property. (Id. ¶¶ 12, 13, 14.) The record contains no firm evidence of past flooding at Plaintiffs' property. (Def.'s SOUMF, ¶ 19.)
According to Defendant, it inspects the track twice per week. (Kerns Decl., ¶ 12.) As part of the twice-per-week review, inspectors are to report any drainage issues. (Id.) Since 2017, Defendant inspected the Culvert annually, including an inspection on May 3, 2017. (Holzbach Decl., Doc. 46, ¶¶ 5, 6.) According to the bridge foreman responsible for examining the Culvert, at each inspection, he concluded kudzu in the proximity of the Culvert "posed no issue or concern with respect to the flow of water through the Culvert, and no maintenance was required." (Id.)
It is undisputed that kudzu is present at the entrance of the Culvert. (Def.'s SOUMF, ¶¶ 11, 18 (undisputed).) The Parties further agree that Plaintiffs never complained about the presence of kudzu on the Culvert prior to July 26, 2017. (Id. ¶ 19 (undisputed).) The agreement ends here. As noted, Defendantasserts the kudzu poses no concern regarding water flow. On the contrary, Plaintiffs contend vegetation and debris impeded the flow of water on July 26, 2017. (Wellington Apr. 10, 2018 Technical Mem., at 13.) Photographs taken immediately following the flood purportedly show vegetation and debris in the inlet of the Culvert and debris on the railroad embankment around and above the Culvert. (Id. at 4; Def.'s Mot. for Summ. J. Ex. 2, Doc. 43-2, at 13-15.) The Parties further dispute whether debris tangled in kudzu is capable of clearing absent physical removal. (Kerns 30(b)(6) Dep., Doc. 57, at 88:25-89:4; R. Reese Dep., Doc. 51, at 80:16-21.)
The expert testimony is discussed in greater detail below, but the Court notes the experts' respective positions. The Parties offer competing expert testimony regarding the cause of Plaintiffs' flooding. Both experts employed hydrology and hydraulic modeling to analyze the facts of this case. The Parties' experts disagree regarding the amount of rainfall.
Plaintiffs retained Dr. Brian Wellington. Based on the rainfall data used, the size of the Culvert, and other factors considered in his modeling, Dr. Wellington opines that the July 26, 2017 storm was not an unusual rain event for the area; the Culvert possessed the capacity to handle the July 26, 2017 rain event; and absent obstruction of the Culvert, the floodingPlaintiffs experienced would not have occurred. (Wellington Apr. 10, 2018 Technical Mem., at 13.)
Defendant's expert, Mr. Thomas Robertson, reached a different conclusion based upon his modeling. Mr. Robertson determined that when evaluating the rainfall during the essential one-hour window, the rain event was highly unusual for the area. Further, Mr. Robertson opines that even if the Culvert was completely clear and fully operational, the significance of the rainfall would have caused the flooding. (Robertson Nov. 13, 2019 Engineering Report, at 6-7.)
Having set out the overall facts relevant to this action, the Court turns to the pending motions.
II. DEFENDANT'S MOTION TO EXCLUDE TESTIMONY OF PLAINTIFFS'
EXPERT, BRIAN WELLINGTON, PH. D., PE
The Court first addresses Defendant's motion to exclude the testimony of Plaintiffs' expert, Dr. Brian Wellington. (Def.'s Mot. to Exclude Wellington Test., Doc. 60.)
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), govern the admissibility of expert testimony. Federal Rule of Evidence 702 provides:
"As the Supreme Court recognized in Daubert . . . , Rule 702 plainly contemplates that the district court will serve as a gatekeeper to the admission of [expert] testimony." Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003). "The burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).
The Eleventh Circuit has explained that district courts are to engage in a three-part inquiry to determine the admissibility of expert testimony under Rule 702. Quiet Tech. DC-8, 326 F.3d at 1340. Specifically, the court must consider 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...
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