Expert Witness Blog
Summary: Professional Engineering Expert Witness testimony excluded in case involving alleged failure to maintain track as the experts discussion of the “fifty-year rain event” was a legal conclusion.
Facts: This case (Gordon et al v. New England Central Railroad, Inc. – United States District Court – District of Vermont – August 28th, 2019) involves an action against a railroad. The plaintiffs allege that the defendant failed to properly maintain track facilities. The plaintiffs claim that a railroad embankment adjacent to the plaintiffs’ property collapsed during a rain event and that the defendant should be held liable. The plaintiffs have hired Professional Engineering Expert Witness Harvey H. Stone, P.E. to provide testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: The court notes that Mr. Stone is a professional engineer and has been practicing civil engineering for more than 45 years. Mr. Stone states that he has taken a number of courses given by the Federal Railroad Administration and the American Railway Engineering and Maintenance-of-Way Association (AREMA) in track inspection and safety standards and has been accepted as a railroad construction and maintenance expert by the Surface Transportation Board and has appeared as an expert witness in two cases within the past four years.
The defendant argues that Mr. Stone’s expert witness testimony should be excluded because 1) he improperly usurps the court’s and jury’s role in applying the law to the facts, 2) his testimony consists of legal conclusions, 3) he did not use proper methodology in developing his opinions, 4) he is not qualified to offer regulatory opinions, 5) he created his own regulatory definition of “expected water flow”, and 6) his opinions are not based on facts in the record.
The court opines that Mr. Stone’s expert report does not contain an adequate explanation of the methodology or reasoning he applied in coming to his conclusions. In addition, the court states that his opinion on the standard of care to which the NECR was subject is a legal conclusion that usurps the province of the court. Also, Mr. Stone’s opinion about a “fifty-year rain event” is inadmissible because it offers a legal definition of a federal regulation, but appears to offer a meteorological opinion as well.
Conclusion: The court opines that the motion to exclude the expert witness opinion of Harvey H. Stone is granted.