Lauing et al v. Rapid City, Pierre and Eastern Railroad, Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
JOHN DUSTIN LAUING,
LAUING, EUGENIE LAUING,
Plaintiffs,
vs.
RAPID CITY, PIERRE AND
BERNARD
EASTERN
RAILROAD, INC., A SUBSIDIARY OF
GENESEE & WYOMWG,
CONNECTICUT CORPORATION;
Defendant.
INC., A
3:19-CV-03006-RAL
OPINION AND ORDER DENYING
MOTION FOR SUMMARY JUDGMENT
AND MOTION TO EXCLUDE
PLAINTIFFS' EXPERT
Plaintiffs John Dustin Lauing, Bernard Lauing, and Eugenie Lauing sued Rapid City,
Pierre, and Eastern Railroad, Inc. (RCPE), over a fire that spread over several hundred acres of
their land. The Lauings allege that a passing RCPE train started the fire in RCPE's right-of-way
and that the fire then spread to their abutting property. They claim that RCPE was negligent in
operating and maintaining its train and by failing to keep its right-of-way reasonably free of
combustible material. RCPE moved for summary judgment, arguing that the Lauings lack
evidence that it was negligent and that their claims fail without expert testimony that its train
caused the fire. This Court denies RCPE's motion for summary judgment because there are
genuine disputes of material fact on whether RCPE was negligent and the facts are simple enough
that a lay person would not need an expert's help to decide whether RCPE's train caused the fire.
I. Facts
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Darrell Peterman and his wife Elaine were hunting rattlesnakes south of Blunt, South
Dakota on the afternoon of August 25, 2018. Doc. 45-1 at 2-3; Doc. 45-2 at 2. Two individuals
familiar with the area led the Petermans to a pasture where they could find some snakes. Doc. 58-
2 at 2-3; Doc. 58-1 at 3. Southwest of the Petermans' location was a railroad track owned by
RCPE. Doc. 45-1 at 4. The Petermans were parked on a hill located about a half mile to a mile
from the tracks when Elaine saw a train approaching from the south. Doc. 45-1 at 5; Doc. 45-2 at
2; Doc. 58-1 at 10. As the train passed the Petermans, Elaine saw smoke appear on the far side of
the tracks near the back of the train, followed momentarily by flames. Doc. 45-2 at 3-6; Doc. 58-
1 at 6,10; Doc. 45-1 at 5-6; Doc. 58-2 at 6-7. Darrell testified that the smoke was coming from
a point close to the tracks and that the flames spread quickly from there. Doc. 45-1 at 7; Doc. 58-
2 at 6-7. One of the men who had led the Petermans to the pasture called the Blunt Fire
Department. Doc. 45-1 at 8.
The Petermans testified that before the train arrived, they did not see any vehicles or people
in the area of the fire, although Elaine acknowledged that they hadn't been parked on the hill long
and that she did not know who may have been through the area before they arrived. Doc. 45-1 at
10; Doc. 45-2 at 6-7; Doc. 58-1 at 11-12. Darrell remembered a strong wind blowing from the
southeast but said that it was otherwise a nice day with clear skies. Doc. 45-1 at 7,10-12. He also
remembered that the "engine was working, you know, trying to gain speed" as the train passed
them. Doc. 45-1 at 7, but said that he did not see any smoke or sparks coming from the train or
anything hanging down from the train that could have caused a spark, Doc. 58-2 at 6-8. Other
than testifying to seeing smoke on the far side of the tracks as the train passed and then seeing
flames, Elaine said that she did not know how the fire started and that she did not see anything
come off the train or any smoke on the locomotive or railcars. Doc. 58-1 at 6, 9.
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Upon learning of the fire, Bernard and Eugenie Lauing went to their pasture and moved
their cattle away from the flames. Doc. 63 at ^ 8; Doc. 62-3 at 2; Doc. 64 at P. The Blunt Fire
Department arrived around two in the afternoon. Doc. 45-3 at 2-3. It took five hours, forty people,
and twenty-one firefighting apparatuses to fully contain the fire. Doc. 45-3 at 3. Blunt Fire Chief
Travis Heuertz testified that the fire started "right along the tracks within that hundred foot or so
of the [railroad] bridge." Doc. 45-3 at 2. Heuertz determined this was so because the wind was
blowing out of the "east-southeast" at about 25 miles per hour and thus would not have allowed
the fire to back bum "much if at all." Doc. 45-3 at 2. When asked if he could determine whether
the fire started on RCPE's right-of-way, Heuertz testified that the fire "probably" started "within
20 to 30 feet of the tracks." Doc. 45-3 at 2. He further explained that the "railroad tracks probably
had the best fuel there was in the right-of-way," and that the fuel pattern supported his
determination that the fire started within twenty to thirty feet of the tracks. Doc. 45-3 at 2. Heuertz
also testified that aerial photographs showing RCPE's right-of-way and the portion of the Lauing
ranch that was burned by the fire suggested that the right-of-way may have had more abundant
vegetation than the Lauings' pasture. Doc. 45-3 at 4-5; Doc. 45-13 at 4. Heuertz acknowledged,
however, that he did not know what caused the fire to ignite and that he was unaware of anything
that RCPE did negligently to cause the fire. Doc. 39 at ^ 4-5; Doc. 44 at ^ 4-5; Doc. 58-4 at 6-
8.
According to an affidavit from John Dustin Lauing, RCPE's right-of-way in the area
Heuertz believes the fire started measures about 97 feet from the edge of the ballast rock to the
fence line. Doc. 46 at ^ 7-8. John Dustin testified that a few days after the fire, he observed tall
vegetation, broken railroad ties, and spray paint cans in RCPE's right-of-way. Doc. 45-4 at 2. The
railroad ties were still smoldering. Doc. 45-4 at 2. Bernard Lauing testified that RCPE did not do
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anything to control the vegetation. Doc. 45-5 at 2. The Lauings cite to pictures ofRCPE's right-
of-way to support their claim that it contained combustible materials. Doc. 43; Doc. 45-16.
The Blunt Fire Department sent RCPE an invoice for the costs of fighting the fire because
it believed that the fire started on RCPE's right-of-way. Doc. 45-3 at 6-7. RCPE did not pay the
invoice. Doc. 45-3 at 7.
Daniel Dalton, RCPE's general manager, learned of the fire a few days after it occurred.
Doc. 45-8 at 2. Dalton ordered an inspection of the inductor tubes and carbon traps on the
locomotives for cleanliness and carbon build up. Doc. 45-8 at 3. Mike Harms, a locomotive
mechanic for RCPE, examined the locomotives in Rapid City. Doc. 58-6 at 2, Doc. 45-9 at 3.
Harms did not know how the locomotives arrived in Rapid City from Huron nor how long after
the fire his inspection occurred. Doc. 45-9 at 2-3. He testified that the exhaust stacks "looked
good," that the carbon buildup on the inductor tube was not "anything more than normal," and that
his inspection indicated that the locomotives did not cause the fire. Doc. 58-6 at 4, 8-9. Harms
did not create a written report of his inspection and did not examine anything on the locomotives
beyond the exhaust stacks and inductor tubes. Doc. 45-9 at 3. Workload reports from RCPE show
that one of the locomotives required repairs in May 2018 for a defect that caused a "large cable"
to bum, and the other locomotive required repairs in July 2018 for a defect that caused a coil to
bum. Doc. 45-8 at 6-7; Doc.45-14.
Dalton wanted the railcars on the train inspected but believes that some of them were not
inspected because of problems locating them. Doc. 45-8 at 3, 7, He also reviewed the rear-facing
camera from the train but did not see anything noteworthy. Doc. 58-3 at 2. His investigation of
the fire thus consisted of viewing the rear-facing camera footage, having the inductor tubes and
carbon traps examined, and having the railcars RCPE could find inspected. Doc. 45-8 at 4. Dalton
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believed that his investigation was sufficient to rule out RCPE's train as the cause of the fire. Doc.
45-8 at 5.
The Lauings' expert rebuttal witness Brandon Ogden disagreed, opining that RCPE's
investigation was too cursory and untimely to be able to conclude that its train did not start the
fire. Doc. 48-10 at 5-10; Doc. 45-11 at 2. Ogden explained that locomotive and rail car
inspections should occur immediately after a fire because evidence can become difficult to detect
even a few days later. Doc. 48-10 at 8; Doc. 45-11 at 3. In Ogden's view, RCPE's "failed
inspection and investigation protocol" meant that "many common railroad causes of sparks that
can ignite a fire cannot be ruled out as a potential cause." Doc. 48-10 at 8. Ogden also opined that
RCPE failed to reasonably maintain its right-of-way. Doc. 48-10 at 9.
The Lauings sued RCPE, claiming it was negligent by, among other things, failing to
properly operate, maintain, control, and monitor its train and equipment and failing to keep its
right-of-way reasonably free of combustible matter. Doc. 1 at ^ 13. RCPE moved for summary
judgment, arguing that the Lauings lack evidence that it was negligent and that their claims fail
without expert testimony that it caused the fire. Docs. 36, 37. RCPE also moved to exclude Ogden
as an expert witness. Doc. 40,
II. Summary Judgment Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56(a) places the burden initially on
the moving party to establish the absence of a genuine issue of material fact and entitlement to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). Once the moving party has met that burden, the nonmoving party must establish
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that a material fact is genuinely disputed either by "citing to particular parts of materials in the
record" or by "showing that the materials cited do not establish the absence . . . of a genuine
dispute." Fed. R. Civ. P. 56(c)(l)(A), (B). A party opposing a properly supported motion for
summary judgment "may not merely point to unsupported self-serving allegations, but must
substantiate his allegations with sufficient probative evidence that would permit a finding in his
favor, without resort to speculation, conjecture, or fantasy." Reed v. City of St. Charles, 561 F.3d
788, 790-91 (8th Cir. 2009) (cleaned up and citations omitted). In ruling on a motion for summary
judgment, the facts and inferences fairly drawn from those facts are "viewed in the light most
favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold. Inc, 369 U.S. 654, 655 (1962)
(per curiam)).
III. Analysis
The Lauings, who are South Dakota residents, sued RCPE in federal court based on
diversity jurisdiction. RCPE admitted in its answer that it is headquartered in Rapid City, South
Dakota, and that it is a Delaware corporation. Doc. 4 at 1. As one of its affirmative defenses,
RCPE alleged that this Court lacked subject matter jurisdiction because the parties were not
completely diverse. Doc. 4 at 2. RCPE did not argue that this Court lacked jurisdiction in any of
its other filings and never moved to dismiss.
Federal diversity jurisdiction requires complete diversity of citizenship among the parties.
OnePoint Solutions. LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007). "Complete diversity of
citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds
citizenship." Id. Under the diversity statute, "a corporation shall be deemed to be a citizen of
every State and foreign state by which it has been incorporated and of the State or foreign state
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where it has its principal place of business." 28 U.S.C. § 1332(c)(l). The Supreme Court
interpreted the phrase "principal place of business" as "referring to the place where a corporation's
officers direct, control, and coordinate the corporation's activities," that is, the corporation's
'"nerve center.'" Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). A corporation's nerve center
"should normally be the place where the corporation maintains its headquarters—provided that the
headquarters is the actual center of direction, control, and coordination." Id. at 93.
Because the record did not contain any information about whether Rapid City is the "nerve
center" ofRCPE, this Court directed RCPE to either move to dismiss for lack of complete diversity
of citizenship or to file a statement withdrawing its affirmative defense and acknowledging that
RCPE's "never center" is not within South Dakota. RCPE has now filed a statement withdrawing
its defense that subject matter jurisdiction is lacking and explaining that it is not asserting that
RCPE's nerve center is within South Dakota, Doc. 66.
Since the parties are completely diverse and the fire occurred in South Dakota, South
Dakota law governs the Lauings' negligence claims. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 72-
73 (1938). To succeed on their negligence claims, the Lauings must show that RCPE owed them
a duty, that RCPE breached that duty, and that this breach was the proximate and factual cause of
their injury. Hanson v. Big Stone Therapies. Inc.. 916 N.W.2d 151, 158 CS.D. 2018); Kirlin v.
Halverson, 758 N.W.2d 436, 448 (S.D. 2008). Again, the Lauings make two negligence claims:
that RCPE negligently operated and maintained its train and negligently failed to keep its right-of-
way reasonably clear ofcombustible materials. This Court analyzes the question of duty for these
claims together but then considers the claims separately when analyzing breach and causation.
A. Duties RCPE Owed the Lauings
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The existence of a duty is a question of law for the court. Smith ex rel. Ross v. Lagow
Const. & Developine Co., 642 N.W.2d 187,192 (S.D. 2002). The Lauings claim that RCPE owed
them a general duty of reasonable care, and that two context-specific manifestations of this duty
apply here. See SDCL 20-9-1 ("Every person is responsible for injury to the person, property, or
rights of another caused by his willful acts or caused by his want of ordinary care or skill. . . .").
First, the Lauings assert that RCPE owes a "duty to exercise ordinary and reasonable care and
prudence in the operation of its railway" and that it "must exercise reasonable care to avoid danger
to the public, including the property of others near its track." Doc. 43 at 8 (quoting 65 Am. Jur.
2d Railroads § 197 (Feb. 2022 Update) (footnote omitted)). Second, the Lauings assert that RCPE
owes a duty to "use ordinary or reasonable care and diligence to keep its track and right of way or
other contiguous property reasonably free from combustible matter," and that a railroad "is liable
for damage caused by fire as a result of a breach of this duty." Doc. 43 at 8 (quoting 74 C.J.S.
Railroads § 833 (Mar. 2022 Update)).
1. Preemption
The duties the Lauings argued in their brief are the same duties they alleged in their
complaint. Doc. 1 at ^| 12-13. RCPE did not argue that federal law preempts these duties in its
initial brief. Doc. 37. In its reply brief, however, RCPE makes a one-sentence argument in a
footnote that the federal Locomotive Inspection Act (LIA) preempts the state standard of care to
the extent that the Lauings claim this standard applies to maintenance of its locomotives and
railcars. Doc. 55 at 7 n.3. A preemption defense based on the LIA can be waived, Little v. Budd
Co.. 955 F.3d 816, 821-23 (10th Cir. 2020), and both this Court and the Eighth Circuit usually
decline to address arguments raised for the first time in a reply brief, see Select Specialty Hosp.-
SiouxFalls, Inc. v. Brentwood Hutterian, Brethren. Inc., 4:19-CV-04171-KES, 2021 WL 6125814,
8
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at *11 (D.S.D. Dec. 28, 2021) (declining to consider cursory argument raised for the first time in
a reply brief); Liscomb v. Bovce, 954 F.3d 1151, 1154 (8th Cir. 2020) (holding that claims not
raised in opening appellate brief are waived). This Court will not consider RCPE's LIA
preemption argument since RCPE raised it for the first time in its reply brief and even then, only
in a cursory fashion.'
RCPE also argues that 49 C.F.R. § 213.37 preempts a state standard of care from applying
to at least some portion of its right-of-way. Section 213.37 addresses vegetation "on or
immediately adjacent to roadbed," id., and courts have held that it preempts state negligence claims
concerning vegetation in this area, Easterwood v. CSX Transp.. Inc., 933 F.2d 1548, 1554 (llth
Cir. 1991); S. Pac. Transp. Co. v. Builders Transn.. Inc., No. 90-3177, 1993 WL 185620, at *6
(E.D. La. May 25, 1993). Unlike the LIA preemption argument, RCPE devotes more than one
sentence to its claim about preemption under § 213.37. Doc. 55 at 16-18. Indeed, the Lauings
address § 213.37 themselves in their response to RCPE's motion for summary judgment. Doc. 43
at 15-16. They acknowledge that § 213.37 preempts claims concerning vegetation on or
immediately adjacent to RCPE's roadbed yet point out that state negligence law still applies to
vegetation beyond this area but within RCPE's right-of-way. Doc. 43 at 15-16; see Easterwood,
933 F.2d at 1554 (holding that § 213.37 did not preempt state negligence claim for "the vegetation
near, but not immediately adjacent to, the tracks"); S. Pac. Transp. Co., 1993 WL 185620, at *6
(concluding that § 213.37 does not preempt a state law negligence claim concerning vegetation in
'Even if this Court were to consider RCPE's argument, the LIA would not preempt a state standard
of care concerning how RCPE operated its train. See Bates v. Mo. & N. Ark. R.R. Co., 548 F.3d
634, 638 (8th Cir. 2008) (holding that the LIA did not apply to the plaintiffs claim that a railroad's
employees failed to operate its train with the necessary care). Nor would the LIA preclude a state
law claim brought to redress RCPE's violation of the standard of care set forth in the LIA itself.
Ward v. Soo Line R.R., 901 F.3d 868, 871, 874 (7th Cir. 2018).
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the railroad's right of way but not on or immediately adjacent to roadbed); see also Mo. Pac. R.R.
v. R.R. Comm'n ofTex., 833 F.2d 570, 577 (5th Cir. 1987) (explaining that "not all right-of-way
property lies 'immediately adjacent to the roadbed,'" and that § 213.37 does not apply to
"vegetation that is on the right of way but not immediately adjacent to the roadbed"). This Court
therefore interprets the Lauings' claim about RCPE's right-of-way as only applying to the area not
covered by § 213.37. Having dealt with RCPE's preemption arguments, this Court turns to the
duties RCPE owed the Lauings.
2. Duties Owed
Since federal law does not preempt the Lauings' claims, state law supplies RCPE's
standard of care. Boomsma v. Dakota. Minn. & E. R.R. Corp, 651 N.W.2d 238, 242^4 (S.D.
2002) (looking to state statutes and common law to determine railroad's duty after finding that
federal law did not preempt the plaintiffs' claims), overruled on other grounds by State v. Martin,
683 N.W.2d 399 (S.D. 2004). Under South Dakota law, RCPE owed the Lauings a duty to exercise
ordinary care in operating and maintaining its train and maintaining its right of way. Id. at 244
(concluding that the defendant railroad "owes an ordinary duty of care to the public"); Cronk v.
Chicago. M. & St. P. Rv. Co., 52 N.W. 420, 421-23 (S.D. 1892) (recognizing that a railroad
company owed a duty of ordinary care to a landowner whose property was burned by a fire started
by the railroad's train); Kelsey v. Chi. & N.W. Rv. Co., 45 N.W. 204, 208 CS.D. 1890); see also
Kiemele v. Soo Line R.R. Co., 93 F.3d 472, 474-75 (8th Cir. 1996) (concluding that a railroad
owed a plaintiff injured at a railroad crossing a "general duty to exercise reasonable care under the
circumstances"). This general duty includes a duty for RCPE to keep its right-of-way reasonably
free of combustible material. Kelsey, 45 N.W. at 208 (concluding that the accumulation of dry
grass or other combustible material in the railroad's right-of-way was evidence of negligence);
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Kansas City S. Ry. Co. v Beaty, 388 S.W.2d 79, 83 (Ark. 1965) (recognizing that railroad owes a
duty of due care to keep its right-of-way free ofcombustible materials); 74 C.J.S. Railroads § 833
(Mar. 2022 Update).
B. Claim that RCPE Failed to Exercise Ordinary Care in Operating and
Maintaining its Train
RCPE argues that the Lauings' claim concerning the operation and maintenance of its train
fails because they do not have an expert to testify that RCPE's train caused the fire and because
they lack any evidence that RCPE breached a duty. The Lauings disagree, arguing that
circumstantial evidence shows that RCPE's train caused the fire and that they can show breach of
duty under either a presumption of negligence recognized in South Dakota or the doctrine of res
ipsa loquitor. Because RCPE's train must have started the fire for the presumption and res ipsa
loquitor to apply, this Court considers RCPE's argument on causation first.
1. Causation and Need for Expert Testimony on Whether RCPE's Train
Started the Fire
The Lauings argue that circumstantial evidence shows that RCPE's train started the fire.
Plaintiffs relying on circumstantial evidence to show causation must prove their theory of
causation by a preponderance of the evidence. Parham v. Dell Rapids Twp., 122 N.W.2d 548, 552
(S.D. 1963). This standard does not require plaintiffs to eliminate "all other possible explanations
of causation that the ingenuity of counsel might suggest." Crandell v. Larkin & Jones Appliance
Co., 334 N.W.2d 31, 34 (S.D. 1983) (citation omitted). The record here, viewed in the light most
favorable to the Lauings as this Court must in ruling on the pending summary judgment motion,
would allow a reasonable juror to find it more likely than not that RCPE's train started the fire.
After all:
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• The Petermans from a hillside watched as RCPE's train passed, seeing smoke and
then flames near the tracks where RCPE's train had just passed. Doc. 45-2 at 3-6;
Doc. 58-1 at 6,10; Doc. 45-1 at 5-7; Doc. 58-2 at 6-7.
• Based on the fuel pattern and the direction of the wind, Fire Chief Heuertz believes
that the fire started within twenty to thirty feet ofRCPE's tracks. Doc. 45-3 at 2.
Heuertz also testified that the right-of-way "probably had the best fuel there was"
for the fire. Doc. 45-3 at 2.
• The Petermans did not see any people or vehicles in the area of the fire before
RCPE's train arrived, and it was a nice, clear day. Doc. 45-1 at 10-12; Doc. 45-2
at 6-7; Doc. 58-1 at 11-12.
• The crew on the train testified that they did not see any smoke or flames as they
passed through the area, Elaine Peterman testified that she did not see any smoke
until after the train had started passing, and there is no evidence of there being a
fire before the train arrived. Doc. 45-10 at 5; Doc. 45-2 at 6.
The Supreme Court of South Dakota has upheld plaintiffs' verdicts based on similar facts.
In Nelson v. Chicago B. & O.R. Co., 197 N.W. 288 (S.D. 1924), for instance, witnesses saw a fire
arise along the defendant's right-of-way shortly after its train passed. Id. at 289. Dry grass and
weeds had accumulated on the right-of-way, and the direction of the wind suggested that the fire
had started near the track and then spread to the plaintiffs property. Id. Although the defendant
did not identify any other possible source for the fire, its evidence on the condition and handling
of its train "tended to refute the possibility" that the train had started the fire. Id. The Supreme
Court of South Dakota held that these facts justified the trial court's refusal to direct a verdict for
the defendant on the question of causation. Id. at 289-90. The court reached a similar conclusion
in Kelsev, holding that "purely circumstantial" evidence that a fire started near the tracks about
ten minutes after the defendant's train passed supported a finding that "the fire originated from the
sparks or fire of the passing train." 45 N.W. at 206. This was so even though there was no
evidence that the locomotive engine was emitting sparks, hot coals, or cinders when it passed. Id.
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RCPE argues that the Lauings' circumstantial evidence is insufficient because there are
several "plausible" sources for the fire apart from its train. RCPE first posits that an electric fence
near its railroad bridge could have started the fire. RCPE submitted a picture of the fence and an
affidavit from one of its employees stating that he saw charred ground leading up to the fence and
that this indicated to him "that the fence could have been a possible ignition source for the fire."
Doc. 57 at ^ 7; Doc. 57-1. According to an affidavit from the Lauings, however, the electric fence
shown in RCPE's picture was not operational and had no power to it since 2015. Doc. 63 at ^ 4-
7. The Lauings also aver that the charred ground near the electric fence shown in RCPE's picture
did not actually bum until later in the evening on August 25. Doc. 63 at ^ 9; Doc. 64 at 19. They
explain that after learning of the fire they went to the area shown in the picture to move their cattle
and that when they left the pasture that day this area had yet to burn. Doc. 63 at ^ 8-9; Doc. 64
at ^ 8-9.
RCPE next claims that the people and the vehicles in the area that day could have started
the fire. According to RCPE, Elaine testified that "there were two individuals on foot who she
thought were ranchers that [the Petermans] saw on the date of the fire." Doc. 55 at 3. Other
portions ofElaine's deposition make clear, though, that the ranchers arrived after the train passed
to save their cattle from the fire. Doc. 62-1 at 2-5. And these "ranchers," of course, were Bernard
and Eugenie Lauing. Doc. 63 at ^ 8; Doc. 62-3 at 2; Doc. 64 at ^ 8. RCPE also asserts that the
Petermans and the two individuals who showed them where to find rattlesnakes could have started
the fire when driving to the hunting spot. But RCPE has not pointed to any evidence that the
Petermans and the other two individuals were ever driving west of the tracks where the Petermans
saw the fire start. Indeed, the Petermans were parked on a hill located about a half mile to a mile
east of the tracks when the train arrived and the fire appeared to start. Doc. 62-2 at 2-5; Doc. 58-
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1 at 10. RCPE's other hypothesis is that "it is very plausible that the passing train simply fanned
a fire that was already smoldering." Doc. 55 at 10. RCPE does not cite any evidence to support
this claim, and the record does not provide any either. As explained above, the Petermans did not
see any people or vehicles in the area of the fire before the train arrived, RCPE's crew testified
that they did not see any smoke or flames as they passed through the area, and Elaine did not see
any smoke until after the train had started passing them.
RCPE's last argument on causation is that the fire could have started off its right-of-way
and burned back towards the track. As support RCPE cites to Heuertz's testimony that "there's
no way to tell on how much back burn you had." Doc. 58-4 at 5. RCPE takes this statement out
of context. Heuertz was asked whether charred ground at the edge ofRCPE's ballast rock could
indicate back bum. Doc. 58-4 at 5. He replied: "Yeah, it - - there's - - there's no way to tell on
how much back bum you had. Since you had the - - rock there, it could have burned back 10 feet
to it, or it could have started right at the edge of the rock." Doc. 58-4 at 5. Heuertz did not change
his opinion that, based on the wind and fuel pattern, the fire started within twenty to thirty feet of
the tracks. Doc. 45-3 at 2. RCPE also claims that Elaine Peterman testified that "there was a
backdraft and the fire seemed to come back towards the track." Doc. 55 at 3. But Elaine's
testimony does not support RCPE's theory that the fire started off its right-of-way and then spread
back towards the tracks. Again, both Elaine and Darrell Peterman testified that the fire broke out
near the tracks. Elaine only mentioned a backdraft when describing how the fire progressed from
when she first saw the smoke: "It just went up the hill, you know, up the hill and around, and it
was going in through the gullies and stuff. You could see the smoke, but a lot of times there was
a backdraft or something and it seemed to come back, you know, and stuff." Doc. 58-1 at 5.
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In sum, a reasonable jury could easily find that RCPE's train was more likely to have
caused the fire than any of the ignition sources posited by RCPE. The explanations for the fire
offered by the parties are not equally plausible, and the Lauings under South Dakota law need not
negate all possibilities that something other than RCPE's train caused the fire to survive summary
judgment. Crandell. 334 N.W.2d at 34; Garrido v. Team Auto Sales. Inc., 913 N.W.2d 95, 100
(S.D. 2018) (recognizing that circumstantial evidence can create an inference of causation "even
though it does not negate the existence of remote possibilities that the injury was not caused by
the defendant" (cleaned up and citation omitted)).
This leaves RCPE's argument that the Lauings need an expert to testify that the train caused
the fire. Federal courts sitting in diversity jurisdiction look to state law to determine whether
expert testimony is necessary. Pro Serv. Auto., LLC v. Lenan Corp., 469 F.3d 1210,1213-14 (8th
Cir. 2006). South Dakota law requires expert testimony "when the subject matter at issue does not
fall within the common experience and capability of a lay person to judge." Sheard v. Hattum,
965 N.W.2d 134, 143 (S.D. 2021). Expert testimony was necessary, for instance, to show that a
manufacturer's failure to test a piece of exercise equipment proximately caused the plaintiffs
injury. Burlev v. Kytec Innovative Sports Equip.. Inc., 737 N.W.2d 397, 408 (S.D. 2007). Expert
testimony was also necessary to show causation where the plaintiff had preexisting injuries to his
neck, head, shoulders, and legs, and claimed that a car accident caused extensive damage to these
same body parts. Cooper v. Brownell, 923 N.W.2d 821, 824-25 (S.D. 2019) (per curiam). In
contrast, expert testimony was not required to show that a physical therapist caused a plaintiff
recovering from hip surgery to fracture her femur where evidence supported the plaintiffs claim
that she was not injured before her physical therapy session and the plaintiff alleged that she
suffered a marked increase in pain and worsening of her ambulation immediately after the physical
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therapist's alleged negligent act. Hanson, 916 N.W.2d at 159-61. As these examples illustrate,
the facts of the case determine the necessity of expert testimony.
RCPE relies on four cases—none of which are from South Dakota—to argue that whether
its train caused the fire is beyond the common experience and capability of a lay person. See Ajala
v. W.M. Ban- & Co., 16-CV-2615 (VEC), 2018 WL 6322147, at *2 (S.D.N.Y, Dec. 4, 2018)
(stating that expert testimony would be helpful because the question of whether "static electricity,
a stove pilot light, or some other phenomenon caused" the defendant's paint-thinner product to
ignite was "not easily resolved by lay persons without an expert's guidance"); Howard v. Bosch
Thermotechnology Corp., 4:17 CV 763 CDP, 2018 WL 2087259, at *3 (E.D. Mo. May 4, 2018)
(holding that plaintiffs claiming that the defective design of a water heater caused a fire in their
house needed expert testimony on causation because "of the complexities involved in linking a
component failure of the water heater to the release ofcombustible heat levels to the surrounding
environment"); St. Cvr v. Flying J Inc., No. 3:06-cv-13-J-33TEM, 2008 WL 2608127, at *7 (M.D.
Fla. June 29, 2008) (stating, in the context of a motion in limine, that the cause and origin of a fire
that started after plaintiffs filled their van with propane at defendant's gas station was not a matter
of common knowledge); Presley v. Lakewood Ene'r & Mfg. Co, No. 06-5160,2007 WL 4287583,
at *6 (W.D. Ark. Dec. 4, 2007) (finding that expert testimony was necessary in case where
plaintiffs alleged that a defective condition in a space heater caused a fire). These cases neither
involved fires allegedly caused by a passing train nor establish a general rule that, as RCPE argues,
the failure to have an expert on causation "is fatal to a fire case." Doc. 37 at 4. Rather, these
decisions reaffirm that the facts of a case determine the need for expert testimony. See Weber v.
Paduano, No. 02 Civ.3392 GEL, 2003 WL 22801777, at *9 n.6 (S.D.N.Y. Nov. 25, 2003)
("Sometimes, the question whether one agency as opposed to another caused a fire may well lie
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within the experience and observation of the ordinary jurymen from which they may draw their
own conclusions, and the facts may be of such a nature as to require no special knowledge or skill."
(cleaned up and citation omitted)).
The facts here do not require expert testimony. Again, the Petermans did not see any people
or vehicles in the area of the fire before RCPE's train appeared, and there is no evidence of there
being a fire before the train arrived. Rather, the Petermans saw the fire break out near the tracks
as RCPE's train passed. Simply because RCPE posits alternative ignition sources does not thereby
transform this into a case where the Lauings need an expert witness on causation of the fire. Given
the rather simple explanation from the eyewitnesses Elaine and Darrell Peterman, common
experience and capability could permit a jury to infer that RCPE's train caused the fire.
2. Breach of Duty
RCPE argues that summary judgment should enter because the Lauings have no evidence
that it was negligent. The Lauings disagree, arguing that because the evidence shows that RCPE's
train started the fire, their claim that RCPE negligently operated and maintained its train survives
summary judgment under either a presumption of negligence or the doctrine of res ipsa loquitor.
As the Lauings acknowledge, though, South Dakota law is not entirely clear on whether there is a
difference between the presumption of negligence in cases where locomotive engines start a fire
and application of res ipsa loquitor. Doc. 43 at 15 n.9.
The Supreme Court of South Dakota adopted the presumption of negligence in Kelsey, 45
N.W. 204 (S.D. 1890), holding that proof that a locomotive engine caused a fire by emitting sparks
raises a presumption that the railroad was negligent. 45 N.W. at 207. This presumption "cast[s]
the burden of proof upon the [railroad] of showing that the locomotive engine was properly
constructed and managed." Id Under Kelsey, if the railroad fails to offer any rebuttal evidence,
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the presumption entitles the plaintiff to a directed verdict.2 Id The court in Kelsey did not discuss
the res ipsa loquitor doctrine. Nor did the court discuss the doctrine of res ipsa loquitor when
applying the rule in Kelsey for several years thereafter. See White v. Chi., M. & St, P. Ry., 47
N.W. 146,147 (S.D. 1 890) (explaining that when the origin of the fire is "fixed" upon the railroad,
"it is presumptively chargeable with negligence, and must assume the burden of proving that it
had used all those precautions for confining sparks or cinders, so as to prevent the ignition of fire
to surrounding combustible material"); Cronk, 52 N.W. at 423 (explaining that when the fire was
shown to have been caused by sparks from the locomotive, it "devolved upon the company, in
order to avoid liability, to show that the locomotive was not in a defective condition, and was not
unskillfully or carelessly handled"); Smith v, Chi., M. & St. P. Rv., 55 N.W. 717, 718(S.D.1893)
(recognizing the presumption that arose because the train's engine caused the fire without
discussing res ipsa); Yankton Fire Ins. Co. v. Fremont. E. & M.V.R. Co., 64 N.W. 514, 516 (S.D.
2The rule in Kelsey is at odds with how presumptions typically work under South Dakota law.
Under statute, a presumption shifts the burden of production but not the burden of persuasion:
In all civil actions and proceedings, unless otherwise provided for
by statute or by this chapter, a presumption imposes on the party
against whom it is directed the burden of going forward with
evidence to rebut or meet the presumption, but does not shift to such
party the burden of proof in the sense of the risk of nonpersuasion,
which remains throughout the trial upon the party on whom it was
originally cast. When substantial, credible evidence has been
introduced to rebut the presumption, it shall disappear from the
action or proceeding, and the jury shall not be instructed thereon.
SDCL § 19-19-301; see also In re Estate ofPrinele, 751 N.W.2d 277, 289-90 (S.D. 2008) (stating
that a presumption does not shift the burden of proof). The "substantial, credible evidence"
requirement in § 19-19-301 means that a presumption may be rebutted by "evidence that if
uncontradicted would be sufficient to sustain a finding of the nonexistence of the presumed fact."
In re Estate of Dimond, 759 N.W.2d 534, 538 (S.D. 2008). "[M]ere assertions, implausible
contentions, and frivolous avowals will not avail to defeat a presumption." Id.
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1895) (applying the presumption where there was evidence "tending to prove that a fire was caused
by defendant's engine" without discussing res ipsa).
Over two decades later, however, in Le Zotte v. Lindauist, 212 N.W. 503 (S.D. 1927), the
court described cases where locomotive engines start fires as an exception to how res ipsa loquitor
usually operates. Le Zotte involved a claim that the defendant burned down a building through
negligent use of a heating stove. Id.at 504-05. In describing how res ipsa loquitor applies to fire
cases, the court explained that "the general mle is that the destruction of property by fire does not
raise a presumption of negligence either in the kindling or the management of the fire. The case
of fires caused by sparks emitted from locomotive engines is an exception to this rule." Id. at 505
(citation omitted).
The court discussed res ipsa loquitor and fires again in Bearr/ v. Brensing, 182 N.W.2d
655 (S.D. 1970), a case where the defendant allegedly caused a fire in a field by negligently driving
a truck over wheat stubble. Id The court declined to apply res ipsa loquitor, citing to Le Zotte for
the rule that "with the single exception of fires caused by sparks emitted from locomotive engines,
res ipsa loquitor does not apply to cases involving damage or injury by fire." Beany, 182 N.W.2d
at 656.
The court revisited this holding eight years later in Hunt v. Bripgs, 267 N.W.2d 566 (S.D.
1978). The plaintiffs in Hunt sued the defendants after a fire started in a field where the defendants
were operating a windrower, a baler, and a bale hauler. Id. at 567. The plaintiffs alleged that the
defendants were negligent in their haying operation and were liable under the res ipsa loquitor
doctrine. Id. The trial court granted summary judgment for the defendants, relying on the holding
in Bearry that res ipsa loquitor only applies to fires caused by sparks from trains. Hunt, 267
N.W.2d at 567-68. The Supreme Court of South Dakota reversed, finding that Bearry wrongly
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relied on Le Zotte to hold that res ipsa loquitor did not apply to fires caused by "combustion-engine
powered harvest equipment." Id at 568. As the court explained, Le Zotte was decided before
power-driven equipment become common, and "[t]he present day combustion-engined tractor and
combines are more closely akin to the spark-emitting locomotives than they are to [the] defective
stove[ in Le Zotte]." Id.
The presumption in Kelsey appears to differ from the doctrine of res ipsa loquitor. The
Supreme Court of South Dakota said that the presumption puts the burden of proof on the railroad
to show that the locomotive engine "was properly constructed and managed," and that the plaintiff
would recover unless the railroad offered some rebuttal evidence. Kelsey, 45 N.W. at 207; see
White. 47 N.W. at 147; Cronk, 52 N.W. at 423. Res ipsa loquitor, on the other hand, does not
require the defendant to submit any evidence and allows but does not require a juiy to infer
negligence. Midwest Oil Co. v. City of Aberdeen, 10 N.W.2d 701, 703 CS.D. 1943); Bareer v.
Chelpon, 243 N.W. 97. 98 (S.D. 1932). Any difference between the presumption in Kelsey and
res ipsa loquitor would be relevant to properly instructing the jury. This Court need not decide
which of these theories applies now, though, as the Lauings' negligence claims can survive
summary judgment under both.
RCPE argues that the Kelsey presumption only applies to fires caused by sparks emitted
from a locomotive engine. It points to Ogden's opinion that "[m]any railcar mechanical
components and defects can cause sparks to ignite a fire," Doc. 48-10 at 8 (emphasis added), and
argues that these "separate claims of ignition" make the presumption of negligence inapplicable.
Doc. 55 at 15. RCPE also argues that the presumption does not apply because the Lauings are
unable to prove that its locomotives emitted any sparks. Both arguments conflict with Kelsey,
however. Again, the court in Kelsey held that "purely circumstantial" evidence that a fire started
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near the tracks about ten minutes after a train passed supported the finding that sparks emitted
from the locomotive engine started the fire. 45 N.W. at 206. The court reached this conclusion
even though there was no evidence that the locomotive engine emitted sparks, hot coals, or cinders
when it passed. Id If the presumption of negligence applied on the facts in Kelsey, it can apply
on the facts here too.3 And while RCPE points to its own investigation of the train as evidence
that it was not negligent, this evidence is not so strong that a jury would be bound to find that
RCPE acted with reasonable care. As explained above, the Lauings' expert Ogden opined that
RCPE may have missed potential causes of the fire because its investigation was untimely and
cursory. Doc. 48-10 at 5-8.
The Lauings also can survive summary judgment under res ipsa loquitor when the facts
are viewed in the light most favorable to the Lauings, as this Court must do at this time. The res
ipsa loquitor doctrine exists for cases where evidence of specific acts of negligence are unavailable;
it allows a jury to infer that the defendant was negligent in some unspecified way. Thompson v.
Avera Queen of Peace Hosp., 827 N.W.2d 570, 575 (S.D. 2013). This doctrine "is a mle of
necessity," should be used "sparingly," and "only when the facts and demands of justice make the
3RCPE also argues that the South Dakota cases on the presumption of negligence come from the
era of steam locomotives and that the Lauings have not cited any cases applying the presumption
to modern diesel locomotives. Doc. 55 at 14. District courts sitting in diversity jurisdiction "are
not at liberty to disregard the binding law of the state," and cannot "substitute [their] judgment for
that of the state's highest court. J-McDaniel Const. Co. v. Mid-Continent Cas. Co., 761 F.3d 916,
919 (8th Cir. 2014). RCPE has not cited any case from the Supreme Court of South Dakota (or
any other court for that matter) holding that the presumption of negligence only applies to steam
locomotives. Moreover, the Supreme Court of South Dakota continued to accept the existence of
such a presumption as recently as 1978 in Hunt when diesel locomotives were in use. See Hunt,
267 N.W.2d at 567-68; seealso Bearry, 182 N.W.2d at 656; Geoffrey Freeman Alien, Britannica
Academic Edition: Diesel traction - locomotive (2022) ("By the end of the 1960s, diesel had almost
completely superseded steam as the standard railroad motive power on nonelectrified lines around
the world. The change came first and most quickly in North America, where, during the 25 years
1935-60 (and especially in the period 1951-60), railroads in the United States completely replaced
their steam locomotives.").
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application essential." Malloy v. Commonwealth Highland Theaters, Inc., 375 N.W.2d 631,636
(S.D. 1985) (cleaned up and citation omitted). A plaintiff seeking to invoke res ipsa loquitor in
South Dakota must show three things:
(1) the instrumentality which caused the injury must have been
under the full management and control of the defendant or his
servants; (2) the accident was such that, according to knowledge
and experience, does not happen if those having management or
control had not been negligent; and (3) the plaintiffs injury must
have resulted from the accident.
Steilen v. Cabela's Wholesale. Inc., 906 N.W.2d 913, 915 (S.D. 2018) (citation omitted). Whether
a plaintiff can rely on res ipsa loquitor is initially a question for the court. Cashman v. Van Dyke,
815 N.W.2d 308, 313 (S.D. 2012).
RCPE acknowledges that the train was under its management and control but argues that
the Lauings cannot show that the train caused the fire or that the fire was the sort of occurrence
that does not normally happen absent negligence by the railroad. RCPE's first argument poses no
problem as this Court has already found that a reasonable jury could conclude that RCPE's train
caused the fire. The principal issue here, then, is whether the fire is the sort of accident that
typically occurs because of railroad negligence. This is a close question, as the Lauings have
offered little evidence that trains do not ordinarily cause fires absent negligence by the railroad.
Yet the Supreme Court of South Dakota in Hunt held that res ipsa loquitor applied to circumstances
similar to those here. Hunt, as discussed above, concerned whether the defendants were liable in
negligence for a fire that started in a field where they were operating a windrower, a baler, and a
bale hauler. 267 N.W.2d at 567. None of the parties knew the cause of the fire, and none of the
defendants' equipment was in the immediate vicinity of the fire when it was first observed. Id. at
567-68. The court nevertheless held that the plaintiffs could rely on res ipsa loquitor; it recognized
that the doctrine could apply to fires caused by sparks from locomotive engines and reasoned that
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the "combustion-engined tractor and combines" like the defendants were using were more "akin
to the spark-emitting locomotives" than to the stove in Le Zotte. Id. at 568. Hunt at least suggests
that the Supreme Court of South Dakota views fires started by trains and tractors as more likely to
be the result of negligence than fires caused by other instrumentalities.
This Court also cannot ignore that RCPE had the greater capacity to explain how the fire
started. In close cases, courts have sometimes found that the defendant's superior access to
information "helps resolve doubts in favor of applying res ipsa." Restatement (Third) of Torts:
Physical and Emotional Harm § 17 reporters' note, cmt. i (Am. Law Inst. 2010). As noted above,
Ogden stated that RCPE should have started investigating immediately after the fire because
evidence can become difficult to detect even a few days later. Doc. 48-10 at 8; Doc. 45-11 at 3.
He also criticized RCPE's failure to download the locomotive event recorder data, which he
believes "would have been valuable evidence to determine potential causes of sparks from the train
operation." Doc. 48-10 at 5. Given the Hunt decision and the evidence that RCPE's investigation
was deficient, this Court cannot disregard on summary judgment the theory of res ipsa loquitor,
although this Court will need to hear the evidence before determining whether to instruct on the
Kelsey presumption, res ipsa loquitor, or both.
RCPE argues, however, that the Supreme Court of South Dakota's decision in Cashman
shows that res ipsa should not apply. The plaintiff in Cashman sued the defendant after a propane
explosion in the defendant's home destroyed the plaintiffs house. 815 N.W.2d at 310. The
plaintiff alleged that the defendant was negligent in lighting the pilot light in his furnace the night
before the explosion and that this negligence could be inferred under the res ipsa loquitor doctrine.
Id at 313. The Supreme Court of South Dakota disagreed, reasoning that "any number of reasons"
might explain the explosion and that the "mere occurrence" of the explosion did not support an
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inference of negligence. Id. Cashman does not preclude res ipsa from applying here. Rather, this
case is far more like Hunt where the Supreme Court of South Dakota held that res ipsa loquitor
applied to a fire allegedly caused by combustion engine harvest equipment. In sum, South Dakota
law and the record in this case when viewed in the Lauings' favor do not support summary
judgment on whether RCPE breached its duty to exercise ordinary care in operating and
maintaining its train.
C. Claim that RCPE Failed to Maintain its Right-of-Way
RCPE, as discussed above, owed the Lauings a duty to keep its right-of-way reasonably
free ofcombustible material. The Lauings' claim that RCPE breached this duty concerns material
in RCPE's right-of-way but not on or immediately adjacent to the roadbed. See 49 C.F.R. §
213.37. Courts have defined a railroad's "roadbed" as "the area of soil that supports the ballast,
which is the permeable, granular materials such as sand, gravel, crushed rock or slag, chat, cinders,
and so on placed around and under the ties to promote track stability." Mo. Pac. R.R. v. R.R.
Comm'n ofTex., 948 F.2d 179. 182 n.2 f5th Cir. 1991); see also Norfolk S. Rv. v. Box, 556 F.3d
571, 572-73 (7th Cir. 2009) (explaining that the roadbed is "compacted earth" on which the ballast
and track are placed). A railroad's right-of-way is not always coextensive with the area on or
immediately adjacent to its roadbed: "The area 'immediately adjacent to the roadbed' abuts the
roadbed. Right-of-way property can and often does extend several yards from the roadbed,
however. Consequently, not all right of way property lies 'immediately adjacent to the roadbed'
...." Mo. Pac. R.R., 833 F.2d at 577. At least one court has determined that the "area immediately
adjacent to roadbed extends no further than ten or fifteen feet from it." Anderson Wis. Cent.
Transp. Co., 327 F. Supp. 2d 969, 980 (E.D. Wis. 2004). RCPE's right-of-way in the area where
Heuertz believes the fire started measures about 97 feet from the edge of the ballast rock to the
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fence line. Doc. 46 at ^ 4-7. The right-of-way maintains this approximate width throughout the
area that burned in the fire. Doc. 46 at ^ 8.
RCPE makes four main arguments for summary judgment on the Lauings' right-of-way
claim. It argues first that the vegetation and railroad ties the Lauings complain of are in the
preempted area, that is, on or immediately adjacent to the roadbed. RCPE is partially correct.
Some of the old, charred railroad ties shown in one of the photos the Lauings submitted appear to
be on or immediately adjacent to RCPE's roadbed. Doc. 45-16 at 1. This is not the only evidence
the Lauings have of combustible materials in RCPE's right-of-way, however. At least one other
picture the Lauings submitted shows what appear to be charred railroad ties in an area that is
arguably not on or immediately adjacent to RCPE's roadbed, Doc. 45-16 at 2, and several pictures
show vegetation in areas ofRCPE's right-of-way that would not be preempted, Doc. 45-16 at 1-
3; Doc. 57-1 at 1-2; Doc. 58-5 at 5; Doc. 64 at ^ 4. Bernard Lauing testified that RCPE did nothing
to control its vegetation, Doc. 45-5 at 2, and John Dustin Lauing saw tail vegetation, broken
railroad ties, and spray paint cans in RCPE's right-of-way a few days after the fire, Doc. 45-4 at
2. Heuertz's testimony provides further evidence of combustible materials in RCPE's right of
way; again, he described the right-of-way as having "the best fuel there was." Doc. 45-3 at 2. The
Lauings have submitted enough evidence to create a genuine dispute of material fact on whether
RCPE had combustible materials outside the preempted area but still within its right-of-way.
RCPE's next arguments concern whether its maintenance of the right-of-way could have
been a factual cause of the damage to the Lauings' property. RCPE asserts that the condition of
its right-of-way was almost identical to that of the Lauings' pasture and that it would therefore be
"pure speculation" to claim that its alleged negligent maintenance caused the fire to spread to the
pasture. Doc. 55 at 18. According to RCPE, it is not "possible to say that [its] right-of-way was
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significant in starting or spreading the fire compared to any other piece of debris or vegetation on"
the Lauings' property. Doc. 55 at 19. These arguments have two major problems.
First, there is a question of fact on whether the Lauings' pasture was in the same condition
as RCPE's right-of-way. RCPE claims that several pictures they submitted show tall, dry grass,
fallen timber, and old tires in the Lauings' pasture. Doc. 55 at 6, 18-19. But Eugenie Lauing
submitted an affidavit explaining that the picture of tail grass depicts RCPE's right-of-way rather
than the Lauings' pasture, that the picture showing "fallen timber" is within RCPE's right-of-way,
that the fallen timber is a burnt fence post left in the aftermath of the fire, and that the tires shown
in the picture were placed there by John Dustin Lauing after the fire to support a drainpipe. Doc.
64 at ^ 4-6. And again, Heuertz testified that RCPE's right-of-way had "the best fuel there was"
and that aerial photos suggested that the right-of-way may have had more abundant fuel than the
Lauings' pasture. Doc. 45-3 at 2, 5; Doc. 45-13 at 4.4
Second, RCPE would not be entitled to judgment as a matter of law even if the condition
of the Lauings' pasture were like that ofRCPE's right-of-way. "Causation is generally a question
of fact for the j my except when there can be no difference of opinion in the interpretation of the
facts." Garrido, 913N.W.2dat 100 (citation omitted). "It must be a clear case before a trial judge
is justified in taking these proximate cause issues from the jury." Id. (citation omitted). The
Petermans' testimony that the fire broke out near the tracks, Heuertz's testimony that the fire
started within twenty to thirty feet of the tracks, and the direction of the wind that day would allow
4Doc. 45-13 at 4 is the aerial photograph Heuertz was referring to in his testimony. That aerial
photograph appears to show a strip of land running parallel to the tracks that is much darker than
other areas that were burned. Heuertz testified that there was a fence line where the burned land
turned from black to a lighter gray, and that that the lighter gray area was the Lauings' property.
Doc. 45-3 at 5. If that is so, the dark black land suggesting more abundant fuel would be on
RCPE's right-of-way.
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a reasonable jury to find that the fire started on RCPE's right-of-way. Courts have upheld plaintiff
verdicts on similar facts in cases where plaintiffs alleged that the railroad's negligent maintenance
of its right-of-way caused a fire on their property. Spokane Int'l Ry. Co. v. United States, 72 F.2d
440,441^3 (9th Cir. 1 934) (affirming a verdict for plaintiff where railroad right-of-way contained
flammable vegetation and witnesses testified that the fire started near the tracks shortly after the
train passed); Gainev v. Rockineham R. Co., 68 S.E.2d 780, 781-82 (N.C. 1952) (upholding
plaintiff verdict where railroad right-of-way contained combustible material, witnesses saw a fire
start in the right-of-way, and the fire spread through an uncultivated field "overgrown with
combustible material" to the plaintiffs house); Kelsey, 45 N.W. at 208 (upholding plaintiff verdict
where a witness had seen a fire start near the track and plaintiff introduced evidence that railroad's
right-of-way contained tail, dry grass). Under these circumstances, where the facts taken in the
light most favorable to the Lauings show that the fire started on RCPE's right-of-way, the presence
of combustible materials on the Lauings' property would not rule out RCPE's negligent
maintenance of its right-of-way as a factual cause of the Lauings' damages.
RCPE relatedly argues that the Lauings need an expert to show that the fire started in its
right-of-way. But the facts do not support the argument that where the fire started is outside the
ability of the jury's common knowledge or experience. See Sheard, 965 N.W.2d at 143. Again,
the Petermans saw a fire break out near the tracks and Heuertz testified that, based on the fuel
pattern and direction of the wind, the fire started within twenty to thirty feet ofRCPE's tracks. A
jury will be capable of understanding this testimony and its implications without any help from an
expert.
RCPE also argues that the Lauings' right-of-way claim fails without expert testimony on
the standard of care. Doc. 55 at 20-21. But Ogden provides such testimony. He explains that in
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his experience, railroads "have engineering instructions to clear vegetation along the right of way
for many reasons, including to reduce the potential of starting a fire." Doc. 48-10 at 9. He also
opines that railroads "should follow industry standards, including the [American Railway
Engineering Maintenance-of-Way Association] Vegetation Control Guidelines, so that vegetation
along the railroad right of way does not become a fire hazard to track carrying structures or
adjacent property." Doc. 48-10 at 9. According to Ogden, RCPE "failed to reasonably maintain
its railroad right of way beyond the area immediately adjacent to its mainline track to reduce the
potential of sparks from railroad equipment to ignite a fire." Doc. 48-10 at 9.
D. Motion to Exclude Ogden
RCPE argues that Ogden's testimony should be excluded because it violates the Second
Amended Rule 16 Scheduling Order. Doc. 41. Some history helps to understand RCPE's motion.
This Court's initial Rule 16 Scheduling Order made the Lauings' expert disclosures due in October
2019 and RCPE's due the next month. Doc. 10. The expert disclosure RCPE filed in November
2019 listed six of its employees and "any RCPE employees identified in discovery" as potential
experts having opinions on railroad operations. Doc. 48-7 at 2; Doc. 18 at 1-2. These opinions
included that the conditions of the track and adjacent area were reasonably safe and met industry
standards at the time of the fire; that the train was operated at normal speeds and in conformance
with applicable standards with no known defects and with no known circumstances that could lead
to a spark from any part of the train; that it would be expected that any condition giving rise to a
spark from the train would have been identified through inspections or the investigation of the fire
once it was reported to RCPE; and that given RCPE's investigation, the facts will not support any
claim that RCPE caused the fire or the damages claimed by the Lauings. Doc. 48-7 at 2-3. RCPE
failed to specify which of its employees held what opinion. Doc. 48-7.
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Pointing to RCPE's deficient expert disclosure, the Lauings moved to amend the deadline
for disclosing rebuttal experts. Docs. 12, 13. This Court granted the motion and entered a First
Amended Rule 16 Scheduling Order giving the Lauings thirty days after deposing the "potential
experts" identified by RCPE to disclose their rebuttal expert. Doc. 18. The depositions of RCPE's
potential experts did not occur within the time set by the First Amended Rule 16 Scheduling Order,
so this Court entered a Second Amended setting the following relevant deadlines:
Defendant shall have until July 30, 2021, to disclose which of its
employees may be trial witnesses or expert witnesses. Plaintiffs
then have until September 17, 2021, to depose those witnesses and
Defendant shall make those witnesses available by that date.
Plaintiffs must disclose the identity and report of any rebuttal expert
within 30 days of completing depositions of Defendant's experts,
but by no means shall the Plaintiffs' disclosure be later than October
18, 2021. Defendant then may take the deposition of any rebuttal
expert and disclose the identity and report of any surrebuttal expert
by December 3,2021. If a surrebuttal expert is disclosed, this Court
may grant leave to depose that expert upon a showing of good cause.
Doc. 33 at 3-4. On July 30, 2021, RCPE provided a supplemental disclosure listing five of its
employees and briefly describing the information they may possess. Doc. 48-8. RCPE emailed
the Lauings' counsel a few days later saying that the five employees were fact witnesses and that
it would not be calling any expert witness. Doc. 42-1 at 1. The Lauings deposed the five RCPE
employees on September 13 and 14, 2021. Doc. 48 at ^ 2. They disclosed Ogden's expert report
to RCPE on October 13, 2021. Doc. 48 at ^ 3.
RCPE argues that the Second Amended Rule 16 Scheduling Order did not allow the
Lauings to disclose a rebuttal expert unless RCPE disclosed an expert first. Since RCPE
designated its employees as fact witness, it now claims that the Ogden's disclosure was untimely
and violates the Scheduling Order. The Lauings disagree, arguing that the opinions offered by
RCPE's employees during their depositions constitute expert testimony under the Federal Rules
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of Evidence and that these opinions are the same as those RCPE identified in its November 2019
expert disclosures.
Opinions based on "scientific, technical, or other specialized knowledge within the scope
of Rule 702" are not admissible as lay testimony. Fed. R. Evid. 701(c). Courts look to the
substance of the opinion, rather than the label assigned to the witness, to determine whether the
witness is offering an expert or lay opinion. United States v. STABL, Inc., 800 F.3d 476,486-87
(8th Cir. 2015). The Lauings claim that the opinions ofRCPE's employees fall within Rule 702
because they are based on the employees' specialized knowledge, training, and experience. This
argument has support; as one judge explained, the "specialized nature of railroading and the unique
skills and hiowledge required for effective railroad operations have often led courts to classify
railroad employees as experts on the basis of their specialized knowledge." Nat'l R. R. Passenger
Corp v. Rv. Express. LLC, 286 F.R.D. 211, 214 (D. Md. 2010). At the same time, drawing the
line between an expert and lay opinion can be difficult, particularly when the witness's testimony
is based on experience in a certain industry. 29 Victor J. Gold, Federal Practice and Procedure
Evid. § 6253 (2d ed. Apr. 2022 update) ("[S]everal courts have held that, in cases involving
opinions based on various types of experience in a given industry or on a specific subject, the trial
court has discretion to treat the opinion as that of a lay or expert witness."); see also Burlington N.
R.R. v. Nebraska, 802 F.2d 994, 1004-05 (8th Cir. 1986) (ruling that it was an abuse of discretion
not to consider lay testimony by four railroad executives who testified, "based on knowledge
derived from supervising railroad operations, years of experience in the industry, and review of
employee accident reports," that "trains with cabooses were no safer than cabooseless trains").
Because excluding Ogden's testimony would be inappropriate even ifRCPE's employees were
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merely lay witnesses, this Court need not decide whether their testimony falls within Rule 701 or
Rule 702.
The Federal Rules of Civil Procedure authorize the exclusion ofbelatedly disclosed expert
testimony unless the late disclosure was "substantially justified or is harmless." Fed. R. Civ. P.
37(0(1); Firefighter's Inst. for Racial Equality ex rel. Anderson v. City of St. Louis, 220 F.3d 898,
902 (8th Cir. 2000). "[T]he exclusion of evidence is a harsh penalty and should be used sparingly
...." Weeener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (citation omitted). Courts consider
four factors when deciding whether belatedly disclosed expert testimony should be excluded: "(I)
the importance of the excluded expert testimony; (2) the party's explanation for failure to disclose;
(3) the potential prejudice created by permitting use of the expert testimony at trial or on a pending
motion; and (4) the ability to cure any prejudice by granting a continuance." Sancom, Inc. v.
Owest Commc'ns Corp., 683 F. Supp. 2d 1043, 1063 (D.S.D. 2010).
All four of these factors favor the Lauings. First, Ogden's testimony is important; the
Lauings rely on him to testify about the standard of care for their right-of-way claim and to rebut
RCPE's argument that its investigation shows that its train could not have caused the fire. Second,
the Lauings have a good reason for not disclosing Ogden earlier. RCPE's November 2019 expert
disclosure identified six employees as potential experts but was otherwise very general. This Court
therefore extended the deadline for disclosing a rebuttal expert until thirty days after the Lauings
deposed the "potential experts" identified by RCPE. Doc. 18. This Court entered a Second
Amended Scheduling Order, but that Order also gave the Lauings until thirty days after deposing
RCPE's experts to disclose their rebuttal expert. Doc. 33. The Lauings therefore had no reason
to think that they needed to disclose their rebuttal expert before deposing RCPE's potential defense
experts. Any argument to the contrary is really a backdoor attack on this Court initial decision to
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allow the Lauings to disclose a rebuttal expert. Third, allowing the Lauings to use Ogden's
testimony would not unfairly prejudice RCPE. After all, RCPE deposed Ogden and had over a
month-and-half after his disclosure to designate a surrebuttal expert. Fourth, a continuance is not
necessary because there is no prejudice to RCPE and RCPE had an opportunity to depose Ogden
and disclose a surrebuttal expert. In sum, any untimeliness in disclosing Ogden is substantially
justified and harmless. This is not one of the rare cases where the "harsh penalty" of excluding a
witness is appropriate. Wegener, 527 F.3d at 692.
IV. Conclusion
For the reasons stated above, it is
ORDERED that RCPE's Motion for Summary Judgment, Doc. 36, is denied. It is further
ORDERED that RCPE's Motion to Exclude Plaintiffs' Expert Brandon Ogden, Doc. 40, is
denied.
DATED this 8 day of July, 2022.
BY THE COURT:
ROBERTOA.LA'SEi
CHIEF JUDGE
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