Kramer v. Town of Derby

                                                                                                  7ermont Superior Court
                                                                                                         Filed 07/30/24
                                                                                                            Orleans Unit




VERMONT SUPERIOR COURT                                                             CIVIL DIVISION
Orleans Unit                                                                     Case No. 22-CV-00461
247 Main Street
Newport VT 05855
802-334-3305
www.vermontjudiciary.org

                             Lianne Kramer, et al v. Town of Derby


                              ENTRY REGARDING MOTION
Tide:            Motion in Limine to Exclude Testimony by A. Vernon Woodworth, FAIA (Motion:
2)
Filer:          Brian P. Monaghan
Filed Date:     April 10, 2024

The motion is GRANTED IN PART and DENIED IN PART.

        Defendant Town of Derby seeks to exclude the testimony and opinion of Plaintiffs' expert

witness, A. Vernon Woodworth, FAIA, in the present matter. After reviewing Woodworth's

opinion and the two primary source on which he bases his opinion, the Court agrees that portions
of the opinion should be struck as irrelevant to the present matter under V.R.E. 702, but other
portions of the opinion are relevant and should be allowed as Defendant's objections go to the

weight and quality of the opinion, rather than its admissibility.

        This is a negligence case involving the clearing of a drainage culvert running next to a town
road and under the Kramer Plaintiffs' driveway. On or about April 2, 2019, employees for the

Town of Derby performed maintenance work along the Salem Derby Road, a public right of way
that runs in front of the Kramers' home. This work consisted of removing gravel and other material

that had accumulated in existing culvert ditches alongside Salem Road that bifurcated with the end

of the Kramers' driveway.

        Later that same day, Ms. Kramer walked to the end of her driveway to get her mail. When
she reached the mailbox in an area at the edge of the driveway, next to the culvert, Ms. Kramer

alleges that the ground gave way. She fell into the culvert, injuring her leg.

        The essence of Woodworth's opinion is that the Town employees made the sides of the
culvert too sharp and steep, and that the ground became unstable, resulting in Ms. Kramet's fall.

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22-CV-00461 Lianne Kramer, et al v. Town of Derby
Woodworth opines that the Town employees’ actions violated both OSHA standard 2226-10R 2015
and the Town of Derby’s Road and Bridge Standards, specifically illustration G shown on standard
B-71, which was incorporated as page 9 of the Town standards, and which shows a gradual grade
from the bottom of a culvert to the top of a driveway.

        The Town objects to Woodworth’s testimony on two grounds. First, Woodworth’s citation
and reliance of OSHA standard is irrelevant to the ditching work being done, and it renders his
expert opinion infirm, by extension. Second, Woodworth’s reliance on the Town’s Bridge and Road
Standards are improper because they were adopted after the incident and involve B-71 standards for
new construction, which do not apply existing driveways, which may or may not have been
constructed with the proper sloping grade transitions between culvert and driveway.

        The Town has not deposed Woodworth, but it seeks to strike his testimony based on the
materials relied upon in his expert disclosure.

        The standard of review for whether an expert opinion may go before a jury is found under
V.R.E. 702. While the Town has characterized its challenge as addressing the typical Daubert issues
of applying appropriate principles and methodologies, the actual issue is relevance. 985 Associates,
Ltd. v. Daewoo Electronics America, Inc., 2008 VT 14, ¶¶ 6, 7. The enumerated portions of Rule 702
establish the basis for analyzing an expert opinion’s reliability. To be reliable, an expert’s opinion
must (1) have sufficient facts or data; (2) be the product of reliable principles and methods; and (3)
reflect reliable applications of principles and methods to the facts of the case. V.R.E. 702.
Woodworth’s opinion, albeit brief, appears to have the critical hallmarks of reliability—he has
reviewed pictures of the site and reviewed narratives of the incident from Ms. Kramer. He has
indicated that he is a trained architect and life safety and code consultant with a background in code
enforcement. His analysis of the issue seeks to apply OSHA code standards along with state and
local standards for how driveways and culverts should look and perform.

        In this respect, the Court sees no reliability issue with Woodworth’s opinion that would
trigger a limitation under the Daubert standard.. The fact that he is referencing OSHA standards that
do not strictly apply to the general public is not dispositive of the admissibility of his opinion. In re
LaBerge NOV, 2016 VT 99, ¶ 31 (noting that expert may use nonbinding standards, including OSHA




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22-CV-00461 Lianne Kramer, et al v. Town of Derby
standards, to inform their opinion). The fact that Woodworth is citing town standards that were not
adopted until after the incident is also permissible.1 Id.

        Determining reliability, however, only solves half of the Rule 702 equation. The expert
opinion and testimony must also be determined to be relevant before it may be presented to the trier
of fact. 985 Associates, Ltd., 2008 VT 14, at ¶ 7 (“the trial court must therefore ensure that all expert
testimony is both relevant and reliable before it is presented to the trier of fact.”) (citing Kumho Tire,
Co. v. Carmichael, 526 U.S. 137, 147–48 ) (emphasis added). Relevance is often called the first factor
of determining whether an expert witness’s testimony is admissible. 29 WRIGHT & MILLER, FED.
PRAC. & PROCED. EVID. § 6265.2 (2d.ed. 2024 update). At its most fundamental, relevance under
Rule 702 is a question of whether the “help” provided by expert is related to the facts at issue.

        In this case, there is an important distinction. The culverts at issue were not created in April
2019, and the general shape and angle of the culverts existed prior to these repairs. What is at issue
is whether the town employees acted in a manner that violated their duty to clean out the culverts in
a manner consistent with what a reasonable municipal highway worker would do to clean and
maintain culverts or to take action if the work resulted in any destabilization of the area.

        What is not at issue is what standards or duties a town employee had to follow to install,
create, or even reconstruct a culvert. That is because this was not within the scope of the April 2019
work. It may be argued that it was the Town’s responsibility to construct or re-build culverts in a
certain manner, but that would be an obligation for the Town and outside the scope of the present
complaint, which by its plain language is limited only to the actions of the individual town
employees on April 2, 2019.

        In this respect, the OSHA and the Derby Road standards have questionable relevance in that
both address the creation of a culvert but not the maintenance of one. See OSHA 2226-10R 2015 at
1 (noting that OSHA standards apply to all open excavations made in the Earth’s surface); Vt.
Agency of Transportation B-71 Standard at n.1 (“This sheet is intended for use by designers on
highway projects and in conjunction with a permit for work within highway rights of way . . . .”).

1 The B-71 driveway and intersection standards promulgated by the Vermont Agency of Transportation have been

in place for over 25 years and are often cited as the standard for new construction. See In re Appeal of Thomas J.
Baribault, 2000WL35522102, Dckt. No. 165-9-98 Vtec (May 29, 2000) (Wright, J.) (citing to B-71 standards in place
during a 1997 application); see also In re Woodstock Community Trust, 2011WL5112897, Dckt. No. 203-10-09 Vtec
(Oct. 14, 2011) (Wright, J.) (applying B-71 standards as proof project met or exceeded local standards).

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22-CV-00461 Lianne Kramer, et al v. Town of Derby
Neither the OSHA, nor the Town Road Standards address how to clean out or perform
maintenance on an existing culvert that has already been constructed.

        This distinction has implications to the relevance of Woodworth’s opinion. For example,
the B-71 standards require a gentle grade from the bottom of a culvert to the top of the driveway,
but this standard is for the construction of such a transition. It does not address what steps or
measures should be taken when the existing culvert has a more acute angle and must be cleaned out.
Nothing in the B-71 standard requires or addresses whether a Town worker must take certain steps
in the cleaning out a culvert or warn or flag the site after such work. Neither does the cited OSHA
sections lay out what standards to apply to such a maintenance job.

        To the extent that Plaintiffs seek to introduce Woodworth’s expert opinion to state that the
Town Road Employees were obligated to follow the OSHA and Town Road Standards or that the
standards required the Town Road Employees to re-construct or re-configure the grade between the
bottom of the culvert and the top of the bank, Defendant’s Motion is Granted, and this portion of
the opinion is not allowed.

        In reviewing the expert’s opinion, however, the Court finds that Woodworth’s opinion could
also be introduced to establish several relevant elements. First and foremost, Woodworth’s opinion
states that the area in question was unstable and required additional care. In this respect, the OSHA
and Town Road Standards are not the standards of care that the employees were obligated to use,
but they were evidence that the employees needed to act cautiously as the area was out of
compliance with normal culvert standards. See Klein v. District of Columbia, 409 F.2d 164, 166-67
(D.C. Cir. 1969) (noting that a non-binding building code was relevant to formulating a standard of
care). In this respect, the OSHA and Town Road Standards inform Woodworth’s opinion about
both instability of the bank before and after the work was done as well as the causation. In other
words, while it does not establish what steps the employees should or should not have taken, it does
indicate the nature and condition of the site, which by extension informs Woodworth’s opinion
about what kind of care the Town Road Employees should have taken.

        While the Town disagrees with this opinion, its objections go to the credibility and ultimate
admissibility of the opinion. As such, they are not appropriate for a motion in limine. State v.
Dubois, 150 Vt. 600, 602 (1988). For these reasons, the Town’s Motion in Limine is Denied to the


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22-CV-00461 Lianne Kramer, et al v. Town of Derby
extent that it seeks to exclude Woodworth’s opinion about the inherent danger of the slope area, the
general standard of care, and his causation arguments.

                                                    ORDER

        Based on the foregoing, the Town’s Motion in Limine is Granted in Part and Denied in
Part. The portions of Woodworth’s opinion suggesting that the OSHA guidelines and Road
Standards form a specific standard of care for the Town are not relevant to the present matter as
they invoke a duty to either build or reconstruct that is not at issue in this case, and they may not be
put before the jury as proof of such standard. The portions of Woodworth’s opinion that find the
bank area was unstable based on the nature of the vertical slope along with the opinion that this
instability gave rise to a heightened standard of care, and evinces causation are allowed.

Electronically signed on 7/29/2024 11:35 PM pursuant to V.R.E.F. 9(d)




__________________________________
Daniel Richardson
Superior Court Judge




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22-CV-00461 Lianne Kramer, et al v. Town of Derby