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Kansas City Southern Railway Co. v. Borrowman

March 31, 2010

KANSAS CITY SOUTHERN RAILWAY COMPANY AND NORFOLK SOUTHERN RAILWAY COMPANY, PLAINTIFFS,
v.
BRADY LEE BORROWMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This cause is before the Court on Plaintiffs' Motion to Strike Defendants' Supplemental Rule 26 Disclosure and Disallow Expert Testimony at Trial (Plaintiffs' Motion) (d/e 50), Defendants' Response to Plaintiffs' Motion to Strike Expert Testimony (d/e 53), Defendants' Motion in Limine to Exclude Plaintiffs' Undisclosed "Expert" Testimony and Alternative Motion for Leave to Designate Rebuttal Expert (Defendants' Motion) (d/e 51), Plaintiff Kansas City Southern Railway Company's Opposition to Defendants' Alternative Motion to Designate Rebuttal Expert (KCSR's Response) (d/e 58), and Plaintiff Norfolk Southern Railway Company's Response to Undisclosed Expert Motion in Limine (d/e 60). Also before the Court are Defendants' Motion in Limine to Exclude Plaintiffs' Undisclosed and Irrelevant DVD, Titled By Plaintiffs "In Katrina's Wake" (DVD Motion) (d/e 54) and Plaintiff Norfolk Southern Railway Company's Response to "In Katrina's Wake" Motion in Limine (d/e 59). For the following reasons, the Court grants Plaintiffs' Motion, and denies the DVD Motion. Defendants' Motion is granted in part and denied in part.

FACTS

On April 9, 2009, Plaintiffs Kansas City Southern Railway Company (KCSR) and Norfolk Southern Railway Company (NSR) sued Defendants Brady Lee Borrowman, Russell E. Koeller, Dan Lundberg, Michael H. Reed, and the Sny Island Levee Drainage District (Sny Island). Complaint (d/e 1). Plaintiffs later filed their Amended Complaint (d/e 18), alleging that Sny Island's method of assessing maintenance taxes for tax year 2009 violated the federal Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act), 49 U.S.C. § 11501. Plaintiffs seek prospective injunctive relief.

After the Court denied Plaintiffs' Motion for Preliminary Injunction (d/e 8), the parties engaged in discovery. See August 18, 2009, Opinion (d/e 27). As part of the discovery process, Plaintiffs and Defendants participated in a Rule 16 scheduling conference with U.S. Magistrate Judge Charles H. Evans. Minute Entry of December 10, 2009. The parties agreed that they would not file dispositive motions in this case. Scheduling Order (d/e 43), ¶ 4; see Amended Scheduling Order (d/e 46), ¶ 4. The parties also agreed and represented to the Court that "NO retained testifying experts w[ould] be used at trial." Amended Scheduling Order, ¶ 2.

This matter is set for a bench trial to commence at 9:00 a.m. on April 6, 2010. Each side now seeks to bar the other side from introducing certain evidence at trial. The Court addresses the separate requests in turn.

I. PLAINTIFFS' MOTION AND DEFENDANTS' MOTION

Plaintiffs ask the Court to strike Defendants' Supplemental Rule 26 Disclosures and Supplemental Responses to Plaintiffs' Written Discovery (Supplemental Disclosures) (d/e 50-1), which names Bryan C. Bross, P.E., R.G., as an expert witness who will testify at trial. Defendants state that they are only seeking to introduce Bross as an expert if Plaintiffs present opinion testimony from Jeffrey McCracken, who is NSR's corporate designee.

The parties in this case agreed that neither would hire a retained expert witness. Amended Scheduling Order, ¶ 2. As set out below, Plaintiffs will not be allowed to introduce McCracken as an expert witness, and Defendants likewise will be prohibited from introducing expert testimony. Accordingly, Plaintiffs' Motion is allowed, and the Court strikes Defendants' Supplemental Disclosures and bars Bross from testifying at trial.

Turning to Defendants' Motion, the Court notes that all parties agreed that there would be no expert witnesses in this case. This fact is confirmed by the following exchange that took place at McCracken's deposition:

MR. GIBSON: I don't intend to offer Mr. McCracken as an expert.

MR. WILSON: I didn't think so because we have a stipulation there are no experts.

MR. GIBSON: Correct. And -- But certainly his observations in high water will be the subject of his testimony in part.

MR. WILSON: I'm going to be -- This is -- As best I can make it, this will be a fact deposition and ...


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