Funderburk v. S.C. Elec., Civil Case No.: 3:15-cv-04660-JMC

395 F.Supp.3d 695

Sharon FUNDERBURK and Thomas Funderburk, Plaintiffs,

v.SOUTH CAROLINA ELECTRIC & GAS COMPANY, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

John P. Cantwell, Plaintiff,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Robert Sherr and Kristi Sherr, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Harry Crosby, Plaintiff,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Leonard Anderson and Karen Anderson, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Carol Bausinger and Scott Bausinger, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Richard Miranda and Dorothy Miranda, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Calvin Nesbit and Jane Nesbit, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Harry A. Plexico, Jr. and Margaret S. Plexico, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Carlo J. Seigfried, Plaintiff,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Faron Warwick and Dana Warwick, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Jeanne West, Plaintiff,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Warren Boyeson and Christine M. Boyeson, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Karl Hagenmeyer and Willette Hagenmeyer, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Demario Benjamin and Kerochedia Amaker, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Ann Dennis, Plaintiff,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Richard Green, Plaintiff,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Civil Case No.: 3:15-cv-04660-JMC

Civil Case No.: 3:15-cv-04694-JMC

Civil Case No.: 3:15-cv-04695-JMC

Civil Case No.: 3:15-cv-04877-JMC

Civil Case No: 3:15-cv-04887-JMC

Civil Case No.: 3:15-cv-04888-JMC

Civil Case No.: 3:15-cv-04892-JMC

Civil Case No.: 3:15-cv-04893-JMC

Civil Case No.: 3:15-cv-04894-JMC

Civil Case No.: 3:15-cv-04896-JMC

Civil Case No.: 3:15-cv-04897-JMC

Civil Case No.: 3:15-cv-04898-JMC

Civil Case No.: 3:15-cv-04920-JMC

Civil Case No.: 3:15-cv-04922-JMC

Civil Case No.: 3:16-cv-01141-JMC

Civil Case No.: 3:16-cv-01142-JMC

Civil Case No.: 3:16-cv-01143-JMC

United States District Court, D. South Carolina, Columbia Division.

Signed July 23, 2019

Stanley L. Myers, Stephen Jahue Moore, William H. Edwards, Moore Taylor and Thomas, West Columbia, SC, for Plaintiffs.

Evan Markus Gessner, Patrick John Frawley, Nicholson Davis Frawley Anderson and Ayer, Lexington, SC, Elizabeth A. McLeod, Michael N. Loebl, Fulcher Hagler Reed Hanks and Harper, Augusta, GA, ElizabethAnn Loadholt Carroll, Mitchell Myron Willoughby, Tracey Colton Green, Willoughby and Hoefer, Caleb Martin Riser, Jared Hudson Garraux, Robert Wilder Harte, Steven J. Pugh, Richardson Plowden and Robinson (Cola), Columbia, SC, for Defendants.

ORDER AND OPINION

This matter is before the court for review of Defendant CSX Transportation, Inc.'s ("CSX") Motion to Exclude or Limit the Testimony of Plaintiffs' Liability Experts, Carlos E. Cometto, P.E., and Rick Van Bruggen, P.E., which was filed on June 3, 2019. (3:15-cv-04660-JMC, ECF No. 164; 3:15-cv-04694-JMC, ECF No. 148; 3:15-cv-04695-JMC, ECF No. 147; 3:15-cv-04877-JMC, ECF No. 147; 3:15-cv-04887-JMC, ECF No. 148; 3:15-cv-04888-JMC, ECF No. 146; 3:15-cv-04892-JMC, ECF No. 147; 3:15-cv-04893-JMC, ECF No. 146; 3:15-cv-04894-JMC, ECF No. 146; 3:15-cv-04896-JMC, ECF No. 146; 3:15-cv-04897-JMC, ECF No. 147; 3:15-cv-04898-JMC, ECF No. 147; 3:15-cv-04920-JMC, ECF No. 149; 3:15-cv-04922-JMC, ECF No. 148; 3:16-cv-01141-JMC, ECF No. 142; 3:16-cv-01142-JMC, ECF No. 151; 3:16-cv-01143-JMC, ECF No. 142.¹ ) On June 17, 2019, Plaintiffs responded in opposition to CSX's Motion, which subsequently elicited a reply from CSX on June 24, 2019. (ECF Nos. 200, 204.) For the reasons set forth herein, the court GRANTS IN PART and DENIES IN PART CSX's Motion. Specifically, the court GRANTS CSX's Motion as it relates to Mr. Cometto, but only as it relates to his opinions about the life expectancy of the culverts and whether the culverts caused the flooding; DENIES CSX's Motion as it relates to Mr. Cometto's opinions about the intensity of the rainfall event and local, state, and federal guidelines; and DENIES CSX's Motion as it relates to Mr. Van Bruggen.

I. FACTUAL AND PROCEDURAL BACKGROUND

In October 2015, "weather forecasts predicted historic levels of rain for the Midlands of South Carolina." (ECF No. 132 at 2 ¶ 15.) At the time of the "historic levels of rain," former Defendant South Carolina Electric & Gas Company ("SCE&G") was responsible for managing Lake Murray, a large body of water that SCE&G used to generate hydroelectric power.² (Id. at 2 ¶¶ 9–14.) Allegedly, as Lake Murray's water levels rose, SCE&G "did little or nothing to bring down the lake levels" until it "opened at least three flood gates which had not been done since the year 1939." (Id. at 3 ¶¶ 17–20.) Plaintiffs allege that "[a]s a direct and proximate result of the opening of [those] flood gates, there was a rapid rise in water levels downstream and Plaintiffs' home[s] flooded[,] resulting in a complete destruction of their home[s] and their personal property." (Id. at 4 ¶ 25.) Plaintiffs originally filed suit in the Lexington County Court of Common Pleas on October 20, 2015. (ECF No. 1-1 at 3–12.) SCE&G removed the action to the United States District Court for the District of South Carolina on November 19, 2015. (ECF No. 1.) The court ordered the consolidation of Plaintiffs' cases, all of which concern the underlying flood, on June 9, 2016. (ECF No. 30.)

After this case was removed to this court, Plaintiffs filed their Amended Complaint on January 16, 2019. (ECF No. 132.) Within their Amended Complaint, Plaintiffs bring the following causes of action against Lexington County and CSX: (1) negligence; (2) inverse condemnation; (3) trespass; (4) strict liability; and (5) nuisance. (Id. at 2–16.) In terms of relief, Plaintiffs seek actual damages, punitive damages, reasonable attorney's fees and costs, and additional relief that the court deems just and proper. (Id. at 16.) On May 13, 2019, to prove their case-in-chief, Plaintiffs disclosed Mr. Carlos Cometto and Mr. Rick Van Bruggen as their expert witnesses. (ECF No. 155.) Almost a month later, on June 14, 2019, the court denied Plaintiffs' Motion to Remand, which sought to return this action to the Lexington County Court of Common Pleas. (See ECF No. 193 at 6.) See also Funderburk v. S.C. Elec. & Gas Co. , C/A No. 3:15-cv-04660-JMC, 2019 WL 2482379, at *1 (D.S.C. June 14, 2019). Currently, CSX and Lexington County's Motions for Summary Judgment are pending before the court. (See ECF Nos. 165, 166.)

Turning to the matter at hand, on June 3, 2019, CSX filed its Motion to Exclude or Limit the Testimony of Plaintiffs' Liability Experts, Carlos E. Cometto, P.E., and Rick Van Bruggen, P.E. (ECF No. 164.) Plaintiffs offer Mr. Cometto as a rebuttal expert to Mr. Cronin, one of CSX's experts, and he provides opinions that attempt to rebut issues, including some about CSX's culverts,³ raised by Mr. Cronin. (See ECF No. 215.) Mr. Cometto planned to specifically opine about the "life expectancy" of the culverts, whether there are any regulatory requirements for the culverts, and if the culverts "affected" any of the properties impacted by the flooding. (Id. at 14.) For Mr. Van Bruggen, Plaintiffs initially seem to offer him to show that a "trestle or clear span bridge" would have mitigated the impacts of the October 2015 flood, and CSX failed to undertake any alternative design methods to alleviate the flooding. (See ECF No. 200 at 10.) However, Mr. Van Bruggen states that he will only opine that CSX's culverts caused a certain extent of the flooding and not whether CSX should have affirmatively installed an open-span bridge, which he proposes would have mitigated the flooding. (See ECF No. 157-4 at 14–16.) CSX seeks to exclude Mr. Cometto's testimony entirely, but only limit the testimony of Mr. Van Bruggen. (ECF No. 164 at 25.)

As it relates to Mr. Cometto, CSX first contends that Mr. Cometto "proposes to offer a series of bare conclusions which he does not relate to any underlying facts, data, or analysis."⁴ (Id. at 19.) For example, according to CSX, Mr. Cometto impermissibly claims that its "[c]ulverts ‘are a primary cause of the flooding experienced,’ " but without citing any data, facts, or analysis to support his claim. (Id. (quoting ECF No. 164-8 at 5).) CSX submits that "[i]t is inappropriate for Mr. Cometto to speculate regarding the condition or service life of the [c]ulverts at issue, particularly when he cites no underlying testing, data or facts regarding the actual condition of the [c]ulverts." (Id. at 10.) Also pertaining to the culverts, CSX vigorously asserts that Mr. Cometto "offers speculation on the condition of the [c]ulverts and the impact of debris accumulation, while citing no facts or evidence to support any...