IW seeks to exclude witnesses in stormwater lawsuit

Published 4:32 pm Tuesday, November 30, 2021

Isle of Wight County has filed a motion in federal court to exclude the testimony of all five expert witnesses three Carrollton residents propose to call in their stormwater lawsuit against the county.

Otis Brock of Deep Water Way and his neighbors, Brian and Sue Fernaays, sued the county earlier this year, arguing that the county has taken and damaged their properties without due compensation by refusing to repair a collapsed stormwater pipe. The neighbors blame the pipe for runoff that rushes through their yards when it rains, and the resulting sinkhole that’s grown into a 12-foot-deep, 20-foot-wide chasm spanning the property line.

According to Isle of Wight’s Nov. 2 court filing, expert witnesses are required to prepare and sign a written report that contains all opinions they plan to express on the stand, as well as what facts and data they used when forming those opinions. The witnesses are also supposed to provide their qualifications and a list of other cases in which they have provided testimony during the past four years.

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“The expert report must include ‘how’ and ‘why’ the expert reached a particular result, not merely the expert’s conclusory opinions,” the county’s outside legal counsel, Matthew Hull of the firm Pender & Coward P.C., writes.

If the witnesses fail to disclose all the information required, court rules “impose an ‘automatic sanction’ of exclusion,” Hull writes.

According to court filings by the neighbors’ attorney, Joe V. Sherman, the expert reports include the testimony of John T. “Jack” Claud III and John “Steve” Ferguson, both of the Portsmouth engineering firm Hoggard-Eure Associates P.C., Realtor Nanette Criddle of Rose & Womble, title examiner Patricia Raper of Chesapeake and appraiser Dennis Gruelle of Virginia Beach.

Claud is to detail the cause of the pipe’s collapse and the work required to fix it. Ferguson is to present information on the limits of the sinkhole on specific dates. Criddle is to testify as to the neighbors’ duty to disclose any known defects on their properties to prospective buyers, and the sinkhole’s impact on the properties’ marketability. Raper is to testify on documents recorded related to the Brewer’s Creek and Oyster Court subdivisions. Gruelle is to testify to the valuation of the neighbors’ homes before and after the sinkhole’s formation.

The county argues Claud’s report offers “no basis” for its conclusion, and characterizes Ferguson’s sinkhole surveys and Raper’s six-page title report as not containing any statements of opinion. Criddle’s report “does not offer a detailed and complete explanation of her opinions and the reasons and bases therefor,” and Gruelle, who asserts the owners “cannot sell” their properties “except for a deep discount,” “does not explain the basis for these statements, if any,” the county argues.

The county’s filing also claims all five experts either failed to disclose their qualifications and prior testimony, or that their disclosures were insufficient.

In a rebuttal Nov. 17 motion, Sherman argues while the county “laments that Plaintiffs’ engineering opinion lacks a basis for the opinion that the twenty (20) foot wide hole that is twelve (12) feet deep is a dangerous area,” the county already “admits these holes are dangerous.”

Owners of properties with collapsed stormwater infrastructure have “nowhere to turn for help in repairing this costly, unsightly, and unsafe condition,” Sherman quotes from the county’s October 2019 position paper — intended for the Virginia Association of Counties.

In that paper, the county states that while modern development regulations now require stormwater easements to be deeded to a homeowners’ association, developments built in the 1990s and prior frequently lacked a stated designee for the stormwater system’s upkeep. But Isle of Wight doesn’t own any stormwater easements, the county argues, and would potentially need to increase the stormwater fees it charges residents were it to acknowledge ownership and financial responsibility for said sewer systems.

Sherman further characterizes the experts’ testimony as mostly “undisputed,” arguing the county has not produced its own evidence contrary to the experts’ stated conclusions.

“The arguments raised by the County reflect gamesmanship, not the interests of justice,” Sherman writes. “Almost none of the facts and evidence litigated in these motions are in dispute other than the appraisal valuation which itself is a matter for the jury as a fact in dispute.”

The court has set a trial date of April 5.