Court sides with IW on excluding four witnesses from stormwater lawsuit

Published 3:52 pm Thursday, April 7, 2022

Four of the five witnesses lined up to testify in a lawsuit against Isle of Wight County over a collapsed stormwater pipe won’t be permitted to do so.

The fifth — Patricia Raper — will be allowed to testify only in a non-expert capacity.

U.S. Magistrate Judge Lawrence Leonard issued his order barring the four would-be witnesses on March 23, four months after Isle of Wight County had filed a motion seeking to exclude all five.

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Carrollton residents Otis Brock and his neighbors, Brian and Sue Fernaays, filed the lawsuit last year in federal court in Norfolk. The suit contends the pipe has been washing away their land since 2018, leaving a sinkhole that’s grown into a 12-foot-deep, 20-foot-wide chasm spanning the neighbors’ property line.

Though the pipe provides stormwater retention and drainage for public roads, the county contends it doesn’t own the easement in which the pipe is located and isn’t obligated to repair the damage. County officials authored a position paper in 2019, which refers to stormwater easements without clearly defined owners as “orphaned outfalls.”

The neighbors’ attorney, Joe V. Sherman, had planned to call John T. “Jack” Claud III and John “Steve” Ferguson, both of the Portsmouth engineering firm Hoggard-Eure Associates P.C. as expert witnesses in the pending trial, which was originally scheduled to begin April 5 but has since been delayed.

According to court filings, Claud was to give his opinion as to the cause of the pipe’s collapse and the work required to repair it, while Ferguson was to present on the dimensions of the sinkhole at different dates.

Raper, a title examiner, is to testify on the results of her search of court records on the Brewer’s Creek and Oyster Court subdivisions.

Sherman had also planned to call appraiser Dennis Gruelle, who was to testify as to the valuation of the neighbors’ homes before and after the sinkhole’s formation, and Realtor Nanette Criddle, who was to testify about a homeowner’s duty to disclose known defects to prospective buyers and the sinkhole’s impact on the affected properties’ marketability.

Leonard, however, characterized the four excluded witnesses’ proposed testimony as “unreliable,” writing in his order that “in its role as gatekeeper, the Court has an ‘indispensable’ obligation to ‘ensure that an expert’s testimony both rests of a reliable foundation and is relevant to the task at hand.’”

Sherman filed an appeal of Leonard’s ruling April 6, arguing that the court had “in effect substituted itself for the jury,” leaving Brock and the Fernaayses with “no tangible evidence to support their contention.”

According to county records, Isle of Wight has paid nearly $240,000 to its outside counsel, Pender & Coward, from April 2021 through January to fight the lawsuit.

The figure is well above the roughly $145,000 ($166,000 in 2022 dollars) the county had estimated in its “orphaned outfalls” paper as being needed to repair a collapsed stormwater outfall on Marsh View Court. The outfall is located in the Brewer’s Creek subdivision near Deep Water Way, where Brock and the Fernaayses live, and is characterized in the “orphaned outfalls” paper as a “typical” stormwater outfall in Isle of Wight County.

Sherman hopes to introduce the document as evidence. However, Isle of Wight motioned in February to have the “orphaned outfalls” paper and “any testimony regarding said document” excluded from the trial on the grounds that it “does not pertain” to Brock’s or the Fernaayses’ specific properties and could cause “unfair prejudice.” The court has yet to rule on the county’s motion.

The court is also considering two competing requests for summary judgment – one asking it to side with the neighbors and the other asking it to rule in the county’s favor. A request for summary judgment asks the court to rule on the merits of a case without the matter ever going to a jury.

Isle of Wight requested summary judgment in its favor on Nov. 24, arguing there was “no dispute as to material facts.” Two days later, on Nov. 26, Sherman filed his own request for summary judgment, asking the court to declare the county liable, also on the grounds that there was “no genuine dispute as to any material fact.”

The summary judgment requests will be heard by U.S. District Court Judge Arenda L. Wright Allen.