Funderburk v. S.C. Elec.

Full title: Sharon FUNDERBURK and Thomas Funderburk, Plaintiffs, v. SOUTH CAROLINA…

Court: United States District Court, D. South Carolina, Columbia Division.

Date published: Jul 23, 2019

395 F. Supp. 3d 695 (D.S.C. 2019)

Opinion

Civil Case No.: 3:15-cv-04660-JMC Civil Case No.: 3:15-cv-04694-JMC Civil Case No.: 3:15-cv-04695-JMC Civil Case No.: 3:15-cv-04877-JMC Civil Case No: 3:15-cv-04887-JMC Civil Case No.: 3:15-cv-04888-JMC Civil Case No.: 3:15-cv-04892-JMC Civil Case No.: 3:15-cv-04893-JMC Civil Case No.: 3:15-cv-04894-JMC Civil Case No.: 3:15-cv-04896-JMC Civil Case No.: 3:15-cv-04897-JMC Civil Case No.: 3:15-cv-04898-JMC Civil Case No.: 3:15-cv-04920-JMC Civil Case No.: 3:15-cv-04922-JMC Civil Case No.: 3:16-cv-01141-JMC Civil Case No.: 3:16-cv-01142-JMC Civil Case No.: 3:16-cv-01143-JMC

2019-07-23

Sharon FUNDERBURK and Thomas Funderburk, Plaintiffs, v. SOUTH CAROLINA ELECTRIC & GAS COMPANY, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. John P. Cantwell, Plaintiff, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Robert Sherr and Kristi Sherr, Plaintiffs, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Harry Crosby, Plaintiff, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Leonard Anderson and Karen Anderson, Plaintiffs, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Carol Bausinger and Scott Bausinger, Plaintiffs, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Richard Miranda and Dorothy Miranda, Plaintiffs, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Calvin Nesbit and Jane Nesbit, Plaintiffs, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Harry A. Plexico, Jr. and Margaret S. Plexico, Plaintiffs, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Carlo J. Seigfried, Plaintiff, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Faron Warwick and Dana Warwick, Plaintiffs, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Jeanne West, Plaintiff, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Warren Boyeson and Christine M. Boyeson, Plaintiffs, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Karl Hagenmeyer and Willette Hagenmeyer, Plaintiffs, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Demario Benjamin and Kerochedia Amaker, Plaintiffs, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Ann Dennis, Plaintiff, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants. Richard Green, Plaintiff, v. South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Stanley L. Myers, Stephen Jahue Moore, William H. Edwards, Moore Taylor and Thomas, West Columbia, SC, for Plaintiffs. Evan Markus Gessner, Patrick John Frawley, Nicholson Davis Frawley Anderson and Ayer, Lexington, SC, Elizabeth A. McLeod, Michael N. Loebl, Fulcher Hagler Reed Hanks and Harper, Augusta, GA, ElizabethAnn Loadholt Carroll, Mitchell Myron Willoughby, Tracey Colton Green, Willoughby and Hoefer, Caleb Martin Riser, Jared Hudson Garraux, Robert Wilder Harte, Steven J. Pugh, Richardson Plowden and Robinson (Cola), Columbia, SC, for Defendants.

Stanley L. Myers, Stephen Jahue Moore, William H. Edwards, Moore Taylor and Thomas, West Columbia, SC, for Plaintiffs.

Evan Markus Gessner, Patrick John Frawley, Nicholson Davis Frawley Anderson and Ayer, Lexington, SC, Elizabeth A. McLeod, Michael N. Loebl, Fulcher Hagler Reed Hanks and Harper, Augusta, GA, ElizabethAnn Loadholt Carroll, Mitchell Myron Willoughby, Tracey Colton Green, Willoughby and Hoefer, Caleb Martin Riser, Jared Hudson Garraux, Robert Wilder Harte, Steven J. Pugh, Richardson Plowden and Robinson (Cola), Columbia, SC, for Defendants.

ORDER AND OPINION

This matter is before the court for review of Defendant CSX Transportation, Inc.'s ("CSX") Motion to Exclude or Limit the Testimony of Plaintiffs' Liability Experts, Carlos E. Cometto, P.E., and Rick Van Bruggen, P.E., which was filed on June 3, 2019. (3:15-cv-04660-JMC, ECF No. 164; 3:15-cv-04694-JMC, ECF No. 148; 3:15-cv-04695-JMC, ECF No. 147; 3:15-cv-04877-JMC, ECF No. 147; 3:15-cv-04887-JMC, ECF No. 148; 3:15-cv-04888-JMC, ECF No. 146; 3:15-cv-04892-JMC, ECF No. 147; 3:15-cv-04893-JMC, ECF No. 146; 3:15-cv-04894-JMC, ECF No. 146; 3:15-cv-04896-JMC, ECF No. 146; 3:15-cv-04897-JMC, ECF No. 147; 3:15-cv-04898-JMC, ECF No. 147; 3:15-cv-04920-JMC, ECF No. 149; 3:15-cv-04922-JMC, ECF No. 148; 3:16-cv-01141-JMC, ECF No. 142; 3:16-cv-01142-JMC, ECF No. 151; 3:16-cv-01143-JMC, ECF No. 142.¹ ) On June 17, 2019, Plaintiffs responded in opposition to CSX's Motion, which subsequently elicited a reply from CSX on June 24, 2019. (ECF Nos. 200, 204.) For the reasons set forth herein, the court GRANTS IN PART and DENIES IN PART CSX's Motion. Specifically, the court GRANTS CSX's Motion as it relates to Mr. Cometto, but only as it relates to his opinions about the life expectancy of the culverts and whether the culverts caused the flooding; DENIES CSX's Motion as it relates to Mr. Cometto's opinions about the intensity of the rainfall event and local, state, and federal guidelines; and DENIES CSX's Motion as it relates to Mr. Van Bruggen.

1 The court observes that Plaintiffs filed the same substantive Motion in some, but not all, of the remaining consolidated cases . Accordingly, hereinafter, the court will only cite to documents filed in the lead Funderburk action for ease of reference.

I. FACTUAL AND PROCEDURAL BACKGROUND

In October 2015, "weather forecasts predicted historic levels of rain for the Midlands of South Carolina." (ECF No. 132 at 2 ¶ 15.) At the time of the "historic levels of rain," former Defendant South Carolina Electric & Gas Company ("SCE&G") was responsible for managing Lake Murray, a large body of water that SCE&G used to generate hydroelectric power.² (Id. at 2 ¶¶ 9–14.) Allegedly, as Lake Murray's water levels rose, SCE&G "did little or nothing to bring down the lake levels" until it "opened at least three flood gates which had not been done since the year 1939." (Id. at 3 ¶¶ 17–20.) Plaintiffs allege that "[a]s a direct and proximate result of the opening of [those] flood gates, there was a rapid rise in water levels downstream and Plaintiffs' home[s] flooded[,] resulting in a complete destruction of their home[s] and their personal property." (Id. at 4 ¶ 25.) Plaintiffs originally filed suit in the Lexington County Court of Common Pleas on October 20, 2015. (ECF No. 1-1 at 3–12.) SCE&G removed the action to the United States District Court for the District of South Carolina on November 19, 2015. (ECF No. 1.) The court ordered the consolidation of Plaintiffs' cases, all of which concern the underlying flood, on June 9, 2016. (ECF No. 30.)

2 On May 30, 2019, the parties stipulated to the dismissal of claims against SCE&G, which terminated SCE&G from the above captioned actions. (See ECF Nos. 159, 160.)

After this case was removed to this court, Plaintiffs filed their Amended Complaint on January 16, 2019. (ECF No. 132.) Within their Amended Complaint, Plaintiffs bring the following causes of action against Lexington County and CSX: (1) negligence; (2) inverse condemnation; (3) trespass; (4) strict liability; and (5) nuisance. (Id. at 2–16.) In terms of relief, Plaintiffs seek actual damages, punitive damages, reasonable attorney's fees and costs, and additional relief that the court deems just and proper. (Id. at 16.) On May 13, 2019, to prove their case-in-chief, Plaintiffs disclosed Mr. Carlos Cometto and Mr. Rick Van Bruggen as their expert witnesses. (ECF No. 155.) Almost a month later, on June 14, 2019, the court denied Plaintiffs' Motion to Remand, which sought to return this action to the Lexington County Court of Common Pleas. (See ECF No. 193 at 6.) See also Funderburk v. S.C. Elec. & Gas Co. , C/A No. 3:15-cv-04660-JMC, 2019 WL 2482379, at *1 (D.S.C. June 14, 2019). Currently, CSX and Lexington County's Motions for Summary Judgment are pending before the court. (See ECF Nos. 165, 166.)

Turning to the matter at hand, on June 3, 2019, CSX filed its Motion to Exclude or Limit the Testimony of Plaintiffs' Liability Experts, Carlos E. Cometto, P.E., and Rick Van Bruggen, P.E. (ECF No. 164.) Plaintiffs offer Mr. Cometto as a rebuttal expert to Mr. Cronin, one of CSX's experts, and he provides opinions that attempt to rebut issues, including some about CSX's culverts,³ raised by Mr. Cronin. (See ECF No. 215.) Mr. Cometto planned to specifically opine about the "life expectancy" of the culverts, whether there are any regulatory requirements for the culverts, and if the culverts "affected" any of the properties impacted by the flooding. (Id. at 14.) For Mr. Van Bruggen, Plaintiffs initially seem to offer him to show that a "trestle or clear span bridge" would have mitigated the impacts of the October 2015 flood, and CSX failed to undertake any alternative design methods to alleviate the flooding. (See ECF No. 200 at 10.) However, Mr. Van Bruggen states that he will only opine that CSX's culverts caused a certain extent of the flooding and not whether CSX should have affirmatively installed an open-span bridge, which he proposes would have mitigated the flooding. (See ECF No. 157-4 at 14–16.) CSX seeks to exclude Mr. Cometto's testimony entirely, but only limit the testimony of Mr. Van Bruggen. (ECF No. 164 at 25.)

3 Without citation, one federal district court defined a culvert as follows: "A culvert is a channel or conduit though which water can pass. In the case of a bridge, a culvert is simply the space under the bridge where the water flows." See St. Paul Fire & Marine Ins. Co. v. Nolen Grp., Inc. , No. Civ. A. 02-8601, Civ. A. 03-3192, Civ. A. 03-3651, 2005 WL 639722, at *4 n.4 (E.D. Pa. Mar. 18, 2005). See also Gravine v. Maryland , C/A No. JMC-17-01013, 2018 WL 4206935, at *2 n.2 (D. Md. Sept. 4, 2018) ("A culvert is a structure that allows water to flow under a road or trail.").

As it relates to Mr. Cometto, CSX first contends that Mr. Cometto "proposes to offer a series of bare conclusions which he does not relate to any underlying facts, data, or analysis."⁴ (Id. at 19.) For example, according to CSX, Mr. Cometto impermissibly claims that its "[c]ulverts ‘are a primary cause of the flooding experienced,’ " but without citing any data, facts, or analysis to support his claim. (Id. (quoting ECF No. 164-8 at 5).) CSX submits that "[i]t is inappropriate for Mr. Cometto to speculate regarding the condition or service life of the [c]ulverts at issue, particularly when he cites no underlying testing, data or facts regarding the actual condition of the [c]ulverts." (Id. at 10.) Also pertaining to the culverts, CSX vigorously asserts that Mr. Cometto "offers speculation on the condition of the [c]ulverts and the impact of debris accumulation, while citing no facts or evidence to support any claim the [c]ulverts should have been replaced or were not maintained properly." (Id. at 20.) Building upon this line of reasoning, CSX further alleges that Mr. Cometto "makes no attempt to explain any analysis or methodology, much less explain how his opinions are: (i) derived from ‘sufficient facts or data,’ or (ii) the product of ‘reliable principles and methods,’ ‘reliably applied’ to this case." (Id. (quoting FED. R. EVID. 702(b)–(d) ).) Concerning Mr. Cometto's belief that the October 2015 storm was a three hundred fifty (350) to three hundred ninety (390) year event, CSX purports that his position is "facetious at best and disingenuous at worst" because he failed to look at "contrary facts" and only considers "snippets from this epic, 4-day event." (Id. at 11–12, 19.) Pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), CSX requests that the court exclude Mr. Cometto's testimony in its entirety. (Id. at 25.)

4 CSX specifically notes that it is not challenging the qualifications of Mr. Cometto as an expert pursuant to Rule 702 of the Federal Rules of Evidence. (ECF No. 164 at 9.)

CSX also urges the court to also limit Mr. Van Bruggen from testifying that CSX "could have prevented the flooding of Plaintiffs' propert[ies] by installing a 500-foot open span bridge, when [his] opinion is rendered without reference to any cost-benefit analysis, standard of care, design criteria, engineering standard, or other authority." (Id. at 15 (emphasis in original).) According to CSX, "[s]uch testimony would not be true expert opinion, but naked advocacy, akin to arguing that CSX[ ] could prevent all railroad grade crossing accidents if only it would install automatic gates and lights at all its crossings." (Id. at 22.) Moreover, CSX submits that Mr. Van Bruggen's proposal regarding the open-span bridge is nothing more than "pure speculation" and should, therefore, be excluded because there is no indication that his "alternative is the better scenario, or the best scenario." (Id. at 22–23.) To CSX, "[t]here is no value in [Mr. Van Bruggen's] fictitious/hypothetical model ...." (Id. at 24.) Pursuant to Daubert , CSX requests that the court preclude Mr. Van Bruggen's testimony regarding an open-span bridge. (Id. at 25.)

On June 17, 2019, Plaintiffs responded in opposition to CSX's Motion to Exclude. (ECF No. 200.) Regarding Mr. Cometto, Plaintiffs contend that Mr. Cometto "is offered to help make sense of complicated data and facts" involving the culverts. ( Id. at 7.) In challenging CSX's contention that Mr. Cometto has failed to utilize any underlying testing, data, or facts regarding the culverts, Plaintiffs emphasize that Mr. Cometto cited data from the Federal Highway Administration's Culvert Inspection Manual when he discussed the life expectancy of metal culverts and also cites to pictures of Rawls Creek, which were identified in Mr. Cronin's report, one of CSX's experts. (Id. at 8.) Additionally, Plaintiffs submit that Mr. Cometto's opinions are based upon "the facts and data presented by other witnesses." (Id. at 13.) Plaintiffs further maintain that CSX's allegation that Mr. Cometto was "speculating" about the condition of the culverts is confounded by its admission that Mr. Cometto makes no comment as to the actual condition of the culverts. (Id. ) When discussing the time length of the storm, Plaintiffs maintain that CSX "only object[s] to Mr. Cometto's conclusion," and notes that he "cites specifically to different data points, charts, tables, and figures presented by Mr. Cronin to explain his analysis regarding his conclusions about the intensity of the storm ...." (Id. at 9.) Concerning whether CSX had a duty to replace the culverts, Plaintiffs argue that Mr. Cometto "never stated that CSX[ ] had a duty to replace the culverts, [but] simply observed that there are a number of different guidelines and standards that would recommend a more thorough maintenance and review of the culverts than those followed by CSX[ ]." (Id. at 10.) Plaintiffs believe that these additional guidelines are "completely relevant" and "could be instructive to a jury." (Id. ) According to Plaintiffs, the exclusion of Mr. Cometto's testimony is unwarranted because CSX can cross-examine Mr. Cometto's opinions and conclusions during trial. (Id. at 14.)

Plaintiffs also defended Mr. Van Bruggen's testimony in their Response in Opposition. (Id. at 10–11, 14–15.) First, Plaintiffs emphasize that Mr. Van Bruggen is a well-qualified expert, and his testimony would be useful to a jury. (Id. at 10–11.) Secondly, Plaintiffs suggest that CSX is "putting aside the ample research [Mr. Van Bruggen] did regarding the flooding of the creek." (Id. at 14.) As it relates to the open-span bridge, Plaintiffs contend that they "are not suggesting CSX[ ] do something impossible or that they have never done, but rather something they have done before and with some regularity" because CSX has purportedly used "trestles to carry its tracks across other creeks located in South Carolina." (Id. at 15 (citing Haley v. CSX Transp., Inc. , No. 3:15-cv-5037-TLW, 2016 WL 11530255, at *1 (D.S.C. Oct. 26, 2016) ).) Lastly, as it relates to both Mr. Cometto and Mr. Van Bruggen, Plaintiffs believe that CSX's arguments "are more focused on the weight and credibility of the expert testimony than admissibility." (Id. at 13.) For all of those reasons, Plaintiffs request the court to deny the entirety of CSX's Motion and exclude neither of its experts. (Id. at 15.)

CSX replied to Plaintiffs on June 24, 2019. (ECF No. 204.) Regarding Mr. Cometto, CSX continued to argue that his opinions cannot survive Daubert scrutiny because "they are speculative, lack sufficient factual basis, and arise from no discernible methodology, much less a reliable one." (Id. at 10.) As it relates to the purported lifespan of its culverts, CSX contends that Mr. Cometto did not cite to the Federal Highway Administration Culvert Manual, but he only cited "[a] 1994 brochure from Rinker Materials, a concrete pipe manufacturer (i.e., who offers a competing product to [metal culverts] and thus has financial incentive to disparage the longevity of [metal culverts] ), in support of his claim that the ‘consensus’ view is that [metal culverts] last[ ] only 10-35 years." (Id. at 10 (emphasis in original) (citation omitted).) CSX submits that Mr. Cometto "did not profess any knowledge or opinion as to the [c]ulverts' condition prior to the October 2015 storm[ ]" and only provides a "theoretical conjecture that the [c]ulverts might have deteriorated," which should have caused CSX to consider replacing them. (Id. at 11.) Further submitting that Mr. Cometto fails to pass Daubert muster, CSX points out that he "has not visited the site," "performed no tests or studies," and Plaintiffs "essentially admit" that Mr. Cometto has conducted "no independent analysis." (Id. at 15–16.) CSX continues to urge the court to exclude Mr. Cometto in his entirety, including a "belated declaration" that he submitted after CSX moved for summary judgment and filed the instant Motion.⁵ (Id. at 11–13, 16.) Because this matter has been extensively briefed by the parties, it is ripe for the court's review. See generally Sauls v. Wyeth Pharm., Inc. , 846 F. Supp. 2d 499, 501 (D.S.C. 2012) ("The parties have fully briefed the issues, and this matter is ripe for consideration.").

5 As a general matter, the Federal Rules of Civil Procedure expressly provide that "[a]ny additions or changes to [an] expert's report must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due." Fed. R. Civ. P. 26(e)(2). Under Rule 26(a)(3)(B), pretrial disclosures "must be made at least 30 days before trial," but not when "the court orders otherwise." The court need not consider an expert's supplemental affidavit when it is untimely and fails to comply with the disclosure requirements contemplated by the Federal Rules of Civil Procedure. See Walker v. DDR Corp. , C/A No. 3: 17-cv-01586-JMC, 2019 WL 1349514, at *4 (D.S.C. Mar. 26, 2019). See also Snoznik v. Jeld-Wen, Inc. , C/A No. 1:09cv42, 2010 WL 1924483, at *8–10 (W.D.N.C. May 12, 2010). Here, pursuant to the court's Sixth Amended Scheduling Order, all pretrial disclosures were due no later than July 8, 2019. (ECF No. 146 at 11–12.) Within its Responses in Opposition to the pending Motions for Summary Judgment, both of which were filed on June 12, 2019, Plaintiffs include a declaration from Mr. Cometto, which contains additional documentation for his opinions and conclusions. (ECF Nos. 189-2, 190-2.) It seems, initially, that Mr. Cometto's declaration is timely under the Federal Rules of Civil Procedure, however, Plaintiffs do not include this declaration within their Response in Opposition to CSX's Motion to Exclude. (See ECF No. 200.) CSX did not, and could not, include the declaration within its instant Motion to Exclude because it was created after the filing of CSX's Motion. (Compare ECF No. 164, with ECF No. 189-2, and ECF No. 190-2.) Because the declaration is not currently before the court within either CSX's Motion to Exclude or Plaintiffs' Response in Opposition, the court need not consider Mr. Cometto's declaration—neither to bolster Mr. Cometto's conclusions or exclude him for purposes of Daubert —because it is not an exhibit within any relevant pleading pertaining to the instant Motion. See Local Civ. Rule 7.04 (D.S.C.) ("Where appropriate, motions shall be accompanied by affidavits or other supporting documents.... Relevant portions of the discovery material shall be filed with the motion ." (emphasis added) (citation omitted)). See also Local Civ. Rule 5.01 (D.S.C.) ("If discovery material or depositions are ... necessary to resolution of a pretrial motion which might result in a final order on any issue, the portions to be used shall be filed with the Clerk of Court ... at the filing of the motion insofar as their use can be reasonably anticipated ." (emphasis added)).

II. LEGAL STANDARD

The Federal Rules of Evidence expressly provide:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

FED. R. EVID. 702. A federal trial court is tasked with ensuring that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert , 509 U.S. at 589, 113 S.Ct. 2786. Moreover, an expert's testimony must be "relevant to the task at hand." Id. at 597, 113 S.Ct. 2786. When evaluating the admissibility of expert testimony, "[c]ourts are required to act as ‘gatekeepers’ to ensure that expert testimony is relevant and reliable." Bresler v. Wilmington Tr. Co. , 855 F.3d 178, 195 (4th Cir. 2017) (quoting Cooper v. Smith & Nephew, Inc. , 259 F.3d 194, 199 (4th Cir. 2001) ). In order to fulfill its gatekeeping responsibilities, a federal court "must decide whether the expert has ‘sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case.’ " Belk, Inc. v. Meyer Corp., U.S. , 679 F.3d 146, 162 (4th Cir. 2012) (quoting Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 156, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ). In other words, a court is tasked with conducting "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert , 509 U.S. at 592–94, 113 S.Ct. 2786. "A reliable expert opinion must be based on scientific, technical or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods." Oglesby v. Gen. Motors Corp. , 190 F.3d 244, 250 (4th Cir. 1999) (emphasis in original) (citation omitted). Federal district courts "should ... ‘consider the proposed expert's full range of experience and training,’ not just his professional qualifications." Belk, Inc. , 679 F.3d at 162 (quoting United States v. Pansier , 576 F.3d 726, 737 (7th Cir. 2009) ). When evaluating expert testimony, a federal district court may not abandon its gatekeeping function. See Nease v. Ford Motor Co. , 848 F.3d 219, 230 (4th Cir. 2017).

Generally, a federal district court possesses "considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho Tire Co. , 526 U.S. at 152, 119 S.Ct. 1167. As the gatekeeper of expert testimony, federal courts may, but need not, consider the following factors to ensure an expert's reliability:

(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community.

Cooper , 259 F.3d at 199 (citing Daubert , 509 U.S. at 592–94, 113 S.Ct. 2786 ). The aforementioned factors are neither definitive nor exhaustive. Kumho Tire Co. , 526 U.S. at 150, 119 S.Ct. 1167. Indeed, the United States Court of Appeals for the Fourth Circuit has recently emphasized that a federal district court is "not under any obligation to consider a certain factor or weigh factors it [ ] consider[s] in a particular manner." Belville v. Ford Motor Co. , 919 F.3d 224, 233 (4th Cir. 2019) (citing Nease , 848 F.3d at 229 ). Instead, "the trial court's inquiry is a ‘flexible one,’ and it exercises ‘broad discretion’ in choosing which Daubert factors to apply and how to consider them." Id. (quoting Oglesby , 190 F.3d at 250 ). Still, the proponent of the expert testimony "must establish its admissibility by a preponderance of proof." Cooper , 259 F.3d at 199 (quoting Daubert , 509 U.S. at 592 n.10, 113 S.Ct. 2786 ).

To ensure that an expert's testimony satisfies the Daubert standard, "courts may not evaluate the expert witness' conclusion itself, but only the opinion’s underlying methodology." Bresler , 855 F.3d at 195 (citing TFWS, Inc. v. Schaefer , 325 F.3d 234, 240 (4th Cir. 2003) ). "Moreover, ‘questions regarding the factual underpinnings of the [expert witness'] opinion affect the weight and credibility’ of the witness' assessment, ‘not its admissibility.’ " Id. (quoting Structural Polymer Grp., Ltd. v. Zoltek Corp. , 543 F.3d 987, 997 (8th Cir. 2008) ). Rejecting expert testimony is not the rule, but is rather the exception. See In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig. (No II) MDL 2502 , 892 F.3d 624, 631 (4th Cir. 2018) (quoting United States v. Stanley , 533 F. App'x 325, 327 (4th Cir. 2013) ).

III. DISCUSSION

As an initial matter and by its own admission, CSX expressly declines to challenge the qualifications of either Mr. Van Bruggen or Mr. Cometto. (ECF No. 164 at 9, 14.) Accordingly, proceeding under the assumption that they are qualified experts,⁶ the court may center its analysis on the relevancy and reliability of the opinions provided by Mr. Van Bruggen and Mr. Cometto.⁷ See generally United States v. White , 519 F. App'x 797, 808 (4th Cir. 2013) ("Notably, Thomas and White do not challenge Underhill's qualification as an expert. They instead contest the methodology that supported his testimony ...."); Cooper , 259 F.3d at 200 ("Like the district court, we assume, without deciding, that Dr. Mitchell was qualified to testify regarding the medical cause of Cooper's injuries."); Brand v. Comcast Corp., Inc. , 302 F.R.D. 201, 214 (N.D. Ill. 2014) ("Plaintiffs do not challenge Siskin's qualifications as an expert."); Berk v. St. Vincent's Hosp. & Med. Ctr. , 380 F. Supp. 2d 334, 351 (S.D.N.Y. 2005) ("Defendants have focused their challenge on the reliability prong of Daubert ."). See also Poulis-Minott v. Smith , 388 F.3d 354, 359–60 (1st Cir. 2004) (holding that a federal district court did not abuse its discretion when there was a "lack of an explicit ruling on the qualifications of" a party's experts because the court was "clearly aware of the qualifications" and "noted some of the experts' qualifications"). As such, the court examines, in turn, the relevancy and reliability of Mr. Van Bruggen and Mr. Cometto's opinions under Rule 702 and whether those opinions will assist the trier of fact. Daubert , 509 U.S. at 589, 113 S.Ct. 2786 ; Belk, Inc. , 679 F.3d at 162.

6 Generally, "a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion." Fed. R. Evid. 702. Based upon evidence within the record, Mr. Van Bruggen is a qualified expert because he holds two degrees in engineering, including a graduate degree in water resources engineering, and is registered as a professional civil engineer in several states, which thereby satisfies Rule 702. (ECF No. 157-1 at 14.) Somewhat similarly, Mr. Cometto possesses a Master of Science in Civil Engineering from the University of South Carolina and has extensive experience with water-related, engineering projects. (ECF No. 164-8 at 31–32.) Accordingly, Mr. Cometto is also qualified under Rule 702 to render an expert opinion. A cursory review of their qualifications show that both experts are well-qualified under Rule 702 of the Federal Rules of Evidence.

7 To the extent that CSX possibly challenges Mr. Cometto's qualifications as a "metallurgist" (ECF No. 204 at 15), CSX has waived that argument because it was not included within the instant Motion, but within their reply brief. See generally Yousefi v. INS , 260 F.3d 318, 326 (4th Cir. 2001) (declining to consider a claim that was not raised in the opening brief); United States v. Lewis , 235 F.3d 215, 218 n.3 (4th Cir. 2000) (noting that an issue first argued in a reply brief is not properly before a court); Cavallo v. Star Enter. , 100 F.3d 1150, 1152 n.2 (4th Cir. 1996) (reiterating that "an issue first argued in a reply brief is not properly before" a court).

A. The Relevance and Reliability of Mr. Rick Van Bruggen's Opinions

As it relates to Mr. Van Bruggen, CSX only challenges his opinion that CSX "could have prevented the harm to Plaintiffs' properties by replacing the railroad embankment and [c]ulverts with a 500-foot open span bridge or trestle." (ECF No. 164 at 21 (citations omitted).) CSX contends that Mr. Van Bruggen's proposed opinion fails to satisfy Daubert because of his lack of "any cost-benefit analysis" and such a "hypothetical scenario" would not assist a jury. (Id. at 15, 23–24.) Citing to a case from the Mississippi Supreme Court, CSX further maintains that Mr. Van Bruggen's testimony would be "inherently prejudicial" if it is admitted. (Id. at 22 (citing Irby v. Travis , 935 So. 2d 884 (Miss. 2006).) In defending Mr. Van Bruggen's opinions, Plaintiffs emphasize that CSX has utilized such alternative methods with "regularity." (ECF No. 200 at 15.)

i. The Relevance of Mr. Van Bruggen's Opinion

An expert's testimony must be "relevant to the task at hand." Daubert , 509 U.S. at 597, 113 S.Ct. 2786. "[R]elevance means that the evidence will assist the trier of fact to understand or determine a fact in issue." Cooper v. Brown , 510 F.3d 870, 942 (9th Cir. 2007) (citing Daubert , 509 U.S. at 591–92, 113 S.Ct. 2786 ). See also United States v. Barnette , 211 F.3d 803, 815 (4th Cir. 2000) (noting that a trial court must "ensure that the evidence will assist the trier of fact, or is relevant"). "Such assistance exists where the evidence ‘tends to make the existence of a fact of consequence to an issue in the case more probable or less probable[.]’ " United States v. Katsipis , 598 F. App'x 162, 164 (4th Cir. 2015) (alteration in original) (quoting United States v. Queen , 132 F.3d 991, 994 (4th Cir. 1997) ). To fulfill Daubert 's demand of relevancy, "the proposed expert testimony must have ‘a valid scientific connection to the pertinent inquiry as a precondition to admissibility.’ " Nease , 848 F.3d at 229 (quoting Daubert , 509 U.S. at 597, 113 S.Ct. 2786 ). Moreover, "[w]hat is relevant depends on what must be proved, and that is [sometimes] controlled by [state] law." See Primiano v. Cook , 598 F.3d 558, 567 (9th Cir. 2010). See also Stollings v. Ryobi Techs., Inc. , 725 F.3d 753, 767 (7th Cir. 2013) ("Whether an issue is relevant in a case is a question of substantive state law ; whether the specific evidence offered is relevant to resolving the issue is a procedural question governed by the Federal Rules of Evidence ." (emphasis added) (citation omitted)).

Turning to the underlying theories of Plaintiffs' cases, Plaintiffs allege that CSX was negligent by failing "to properly design, construct , maintain, monitor, operate, warn, and/or otherwise safely manage the culvert and drain." (ECF No. 132 at 7 ¶ 41 (emphasis added).) Plaintiffs also maintain that CSX is strictly liable for failing "to properly construct, maintain , monitor, operate[,] and/or otherwise manage [an] abnormally dangerous culvert and drain system ...." (Id. at 14 ¶ 101 (emphasis added).) The allegations within Plaintiffs' Amended Complaint clearly formulate a theory where CSX is liable for the "design," "construction," and "maintenance" of the culvert and drain system that it operated. (See id. at 7 ¶ 41, 14 ¶ 101.)

As a threshold matter implicating whether Mr. Van Bruggen's testimony about an open-span bridge is "relevant to the task at hand," the court observes that a number of opinions from the Fourth Circuit, some of which are recent, approve the exclusion of expert opinions concerning alternative designs in product liability cases. See Belville , 919 F.3d at 230 n.5 ; Nease , 848 F.3d at 233–34 ; Sexton ex rel. Sexton v. Bell Helmets, Inc. , 926 F.2d 331, 338 (4th Cir. 1991). By way of example, in Belville , the Fourth Circuit affirmed the United States District Court for the District of West Virginia for excluding an expert's opinion regarding an alternative design because the district court reasoned that, in accordance with prior circuit precedent, "the availability of an alternative design was not proof of the alleged defect." 919 F.3d at 230 & n.5. All of these opinions from the Fourth Circuit, however, are rooted in Kentucky or West Virginia law, not South Carolina law. See id. (affirming a federal district court's exclusion of an expert's opinion concerning an alternative design because an alternative design does not prove evidence of a defective product under West Virginia law); Nease , 848 F.3d at 233–34 (interpreting West Virginia law and holding that an alternative design is permitted to only show "state of the art"); Sexton ex rel. Sexton , 926 F.2d at 335–38 (stating that, under Kentucky law, "proof that technology existed, which if implemented could feasibly have avoided a dangerous condition, does not alone establish a defect"). Under South Carolina law,⁸ the South Carolina Supreme Court has stated that "in a product liability design defect action, the plaintiff must present evidence of a reasonable alternative design ."⁹ Branham v. Ford Motor Co. , 390 S.C. 203, 701 S.E.2d 5, 16 (2010). Moreover, South Carolina law establishes that a plaintiff "will be required to point to a design flaw in the product and show his alternative design would have prevented the product from being unreasonably dangerous." Id. (emphasis added). Lastly, important for surviving a dispositive motion, "[t]his presentation of an alternative design must include consideration of costs, safety[,] and functionality associated with the alternative design."¹⁰ See id. See also Graves v. CAS Med. Sys., Inc. , 401 S.C. 63, 735 S.E.2d 650, 658–59 (2012). According to South Carolina courts, these requirements are mandatory. See Holland ex rel. Knox v. Morbark, Inc. , 407 S.C. 227, 754 S.E.2d 714, 720 (S.C. Ct. App. 2014) (citation omitted). In its only direct decision, which is unfortunately unpublished,¹¹ the Fourth Circuit has seemed to acknowledge the crucial significance of alternative designs under South Carolina law when a plaintiff brings a defect claim. See Simo v. Mitsubishi Motors N. Am. , 245 F. App'x 295, 299 (4th Cir. 2007) ("Proving the existence of an alternative feasible design is a ‘crucial aspect’ of this required showing." (quoting Little v. Brown & Williamson Tobacco Corp. , 243 F. Supp. 2d 480, 495 (D.S.C. 2001) )). See also Oglesby , 190 F.3d at 251–52. Based on the foregoing, showing an alternative design to an alleged defect is an essential element to defect claims arising under South Carolina law, which thereby makes an alternative design a relevant issue for purposes of a Daubert inquiry. See Branham , 701 S.E.2d at 16.

8 The court has previously determined that it possesses subject-matter jurisdiction, in the form of a federal question, pursuant to 28 U.S.C. § 1331. See Funderburk v. S.C. Elec. & Gas. Co. , 179 F. Supp. 3d 569, 581–83 (D.S.C. 2016). As it specifically relates to Plaintiffs' state law claims, the court has also exercised its supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). Id. at 583. Here, Plaintiffs bring claims of negligence and strict liability, under the laws of South Carolina, against CSX and Lexington County as it concerns the construction and design of the pipe and drain system, which Plaintiffs allege failed to properly drain the excess water produced from the October rainfall and release of water from the Saluda Dam. (ECF No. 132 at 5–7, 12–14 ¶¶ 32–42, 90–101.) The court specifically possesses supplemental jurisdiction over those state law claims under 28 U.S.C. § 1367(a), and the substantive laws of South Carolina govern those claims as a result. See Sommers Drug Stores Co. Emp. Profit Sharing Tr. v. Corrigan , 883 F.2d 345, 353 (5th Cir. 1989) ("A federal court exercising pendent jurisdiction over state law claims, must apply the substantive law of the state in which it sits." (citing United Mine Workers v. Gibbs , 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) )). Additionally, it is worth noting that Plaintiffs' strict liability and negligence claims may co-exist under South Carolina law. See 5 Star, Inc. v. Ford Motor Co. , 408 S.C. 362, 759 S.E.2d 139, 143 n.5 (2014). See also Rife v. Hitachi Constr. Mach. Co., Ltd. , 363 S.C. 209, 609 S.E.2d 565, 568 (S.C. Ct. App. 2005) ("A products liability case may be brought under several theories, including negligence, strict liability, and warranty." (citations omitted)).

9 In South Carolina, a plaintiff may allege some or all of the following defects: (1) manufacturing defect; (2) warning defect; or (3) design defect. See Watson v. Ford Motor Co. , 389 S.C. 434, 699 S.E.2d 169, 174 (2010).

10 The South Carolina Supreme Court has noted that these factors are for the trier of fact to consider when they assess an alternative design. Branham v. Ford Motor Co. , 390 S.C. 203, 701 S.E.2d 5, 16 n.16 (2010).

11 Unpublished opinions are not binding upon federal district courts located within the United States Court of Appeals for the Fourth Circuit. See generally Hogan v. Carter , 85 F.3d 1113, 1118 (4th Cir. 1996) ("[U]npublished opinions are not even regarded as binding precedent in our circuit ....").

Examining the expert opinion at issue, Mr. Van Bruggen plans to opine that "[t]he replacement of the CSX railroad embankment and culvert with a trestle or clear span bridge type structure would mitigate any future impacts on upstream flooding due to the effects of backwater at that railroad crossing." (ECF No. 157-1 at 12 (emphasis added).) In addition, Mr. Van Bruggen has offered a supplemental opinion, stating that "[t]he flood levels experienced at the addresses of each of the plaintiffs along Rawls Creek in this case were up to 4.1 feet higher than they would have been, but for the presence of the CSX railroad culvert embankment downstream."¹² (ECF No. 157-2 at 2.) Within his deposition, which was taken on March 26, 2019, Mr. Van Bruggen carefully states that he is not opining that an open-span bridge would have prevented the damage to Plaintiffs' homes, but that the presence of CSX's embankment "added so much flood depth to th[e] [flooding] event from what would have been there if the embankment had not been there, if it had been a free span type of bridge." (ECF No. 157-4 at 14.) In explaining the scope of his opinion, Mr. Van Bruggen stated that "[a]ll [he] is saying is that the presence of the bridge crossing in the form it's in right now caused a certain extent of [the] flooding, period." (Id. at 17.) Mr. Van Bruggen carefully declares that he will not "specifically" be rendering an opinion about what CSX should have designed for the flood event. (Id. at 16.) In this same deposition, he concedes that he is not offering an opinion concerning "the likelihood or feasibility or cost/benefit ratio" of the open-span bridge because he does not perform "economic analyses[,]" and he directly acknowledges that whether an open-span bridge would have mitigated the flooding is a "hypothetical scenario[.]" (Id. at 15–18.) Essentially, Mr. Van Bruggen "absolutely" believes that the replacement of CSX's railroad embankment "would mitigate all future flooding," but does not plan to provide an opinion regarding any aspects of CSX's liability and is not "proposing any hypothetical bridge as a replacement." (Id. at 17–18; ECF No. 164-10 at 6.)

12 Interestingly, CSX does not seek to exclude this specific opinion from Mr. Van Bruggen within its Motion to Exclude. (See ECF No. 164.)

Although Mr. Van Bruggen declines to provide an opinion about whether CSX should have adopted an open-span bridge in the instant case and is not proposing a "hypothetical bridge as a replacement" (ECF No. 157-4 at 14–15; ECF No. 164-10 at 6), his opinion regarding the open-span bridge is unquestionably "relevant to the task at hand" for purposes of South Carolina law. Daubert , 509 U.S. at 597, 113 S.Ct. 2786. Under South Carolina law, a plaintiff must show "a design flaw in the product and show his alternative design would have prevented the product from being unreasonably dangerous." Branham , 701 S.E.2d at 16 (emphasis added). Here, Mr. Van Bruggen is expressly opining that CSX's embankment "right now caused a certain extent of [the] flooding, period." (ECF No. 157-4 at 17.) He reaches this conclusion by showing that the absence of the embankment, by way of an open-span bridge or similar structure, would have mitigated the extent of the flooding. (See id. at 15–18.) Essentially, Mr. Van Bruggen's opinion about the open-span bridge is being used to show that CSX's current embankment is a design flaw because he observes less flooding when the embankment is removed from the geographic area or replaced with another hydraulic structure. (See id. ) Accordingly, Mr. Van Bruggen's opinion about open-span bridge is directly tied to whether the CSX's embankment constitutes a design flaw because the amount of flooding, based upon his opinion, varies depending upon the structure in place. (See id. at 14–18 ; ECF No. 164-10 at 6.) Such an opinion is pertinent and relevant to showing a design flaw under South Carolina law and is central to Plaintiffs' theory about the case (ECF No. 132 at 7 ¶ 41, 14 ¶ 101), and thereby helpful to a jury. See Branham , 701 S.E.2d at 16.

Furthermore, South Carolina law affirmatively requires Plaintiffs to present evidence about a reasonable alternative design to CSX's embankment. See id. Mr. Van Bruggen "absolutely" believes that a replacement of CSX's embankment would have mitigated the flooding. (ECF No. 157-4 at 17–18.) His ultimate opinion is that "[t]he replacement of the CSX railroad embankment and culvert with a trestle or clear span bridge type structure would mitigate any future impacts on upstream flooding due to the effects of backwater at that railroad crossing." (ECF No. 157-1 at 12 (emphasis added).) Even though Mr. Van Bruggen stated in his deposition that he will not opine that CSX should have adopted an open-span bridge as an alternative (ECF No. 157-4 at 16), his opinion about the mitigating effects of an open-span bridge is still relevant to whether a reasonable alternative design existed to CSX's embankment and is still Plaintiffs' attempt to satisfy their burden, under South Carolina law, of showing a reasonable alternative design. See Branham , 701 S.E.2d at 16. Lastly, to the extent that Mr. Van Bruggen has declined to conduct a cost-benefit analysis regarding the open-span bridge, such a deficiency does not bear on the admissibility or relevancy of his opinion for purposes of Daubert , but instead contemplates whether his theory is sufficient to withstand a future dispositive motion on the merits. See Graves , 735 S.E.2d at 658–59 ; Branham , 701 S.E.2d at 16 ; Holland ex rel. Knox , 754 S.E.2d at 720–21. To the court, Mr. Van Bruggen's opinion clearly passes the hurdle of Daubert 's relevancy prong because his opinion about the open-span bridge is relevant to South Carolina's governing laws relating to defective designs and products and would assist a jury in determining whether a reasonable alternative design was available. See Daubert , 509 U.S. at 597, 113 S.Ct. 2786 ; Primiano , 598 F.3d at 567.

CSX's reliance upon Irby v. Travis , which it uses to suggest that Mr. Van Bruggen's testimony is prejudicial, is extraordinarily misplaced. (ECF No. 164 at 22.) In Irby , the Mississippi Supreme Court held that a state trial court erred when it permitted an expert "to testify that other railroad companies had voluntarily placed active warning devices at their grade crossings , and that [a railroad company] could have upgraded [a] [ ] crossing by installing gates and flashing lights if it had only chosen to do so." 935 So. 2d at 897 (emphasis added). The Mississippi Supreme Court found that the testimony was "highly prejudicial" and described its admission as "wholly unfair." Id. at 896–97. Underlying CSX's reliance upon Irby is the necessary assumption that prejudice and unfairness are appropriate or guiding factors when subjecting an expert's testimony to the rigors of Daubert . (See ECF No. 164 at 22.) However, neither precedent from the United States Supreme Court or the Fourth Circuit require,¹³ or even vaguely suggest, that this court should utilize the norms of "prejudice" and "fairness" in order to analyze expert testimony.¹⁴ See Kumho Tire Co. , 526 U.S. at 149–50, 119 S.Ct. 1167 ; Daubert , 509 U.S. at 592–94, 113 S.Ct. 2786 ; Belville , 919 F.3d at 232–33 ; Nease , 848 F.3d at 229 ; Cooper , 259 F.3d at 199. Thus, the court declines to include those evidentiary values within its assessment of the relevancy or reliability of Mr. Van Bruggen's opinion because adopting CSX's position would necessarily venture outside the precedential bounds of Daubert and its progeny. See Kumho Tire Co. , 526 U.S. at 149–50, 119 S.Ct. 1167 ; Daubert , 509 U.S. at 592–94, 113 S.Ct. 2786 ; Belville , 919 F.3d at 232–33 ; Nease , 848 F.3d at 229 ; Cooper , 259 F.3d at 199.

13 "[A] lower court generally is ‘bound to carry the mandate of the upper court into execution ....’ " United States v. Bell , 5 F.3d 64, 66 (4th Cir. 1993) (citing Sprague v. Ticonic Nat'l Bank , 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) ).

14 As opposed to utilizing Daubert for an analysis of this sort, CSX's contention regarding the prejudicial nature of Mr. Van Bruggen's opinion is best left for an analysis under Rule 403 of the Federal Rules of Evidence. See Fed. R. Evid. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice , confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." (emphasis added)). CSX does not challenge Mr. Van Bruggen's testimony under Rule 403 within its Motion. (See ECF No. 164.)

For these reasons, the court is compelled to deny CSX's Motion to the extent it seeks to exclude Mr. Van Bruggen's opinion about the open-span bridge because a "hypothetical scenario" is a necessary showing under South Carolina law, a legal regime affirmatively mandating proof of an alternative design, for defective design claims. See Branham , 701 S.E.2d at 16. Indeed, the very nature of requiring a showing of an alternative design necessarily implicates a hypothetical inquiry in and of itself, but courts are nevertheless guided by notions of feasibility or reasonableness when evaluating the proposed alternative design, which thereby limits the amount of conjecture and speculation that is permitted by a proposed alternative design. See generally Davidson v. Fairchild Controls Corp. , 882 F.3d 180, 184–85 (5th Cir. 2018) ; Zaremba v. Gen. Motors Corp. , 360 F.3d 355, 358–60 (2d Cir. 2004) ; Schutte Bagclosures Inc. v. Kwik Lok Corp. , 193 F. Supp. 3d 245, 269–71 (S.D.N.Y. 2016) ; LaBelle ex rel. LaBelle v. Philip Morris, Inc. , 243 F. Supp. 2d 508, 515–21 (D.S.C. 2001) ; Branham , 701 S.E.2d at 16 ; Holland ex rel Knox , 754 S.E.2d at 720–21. Thus, the court holds that Mr. Van Bruggen's opinion about the open-span bridge is unquestionably "relevant to the task at hand" for what must be proven under South Carolina law. Daubert , 509 U.S. at 597, 113 S.Ct. 2786 ; Primiano , 598 F.3d at 567.

ii. The Reliability of Mr. Van Bruggen's Opinion

In order to determine the helpfulness and reliability Mr. Van Bruggen's opinion, the court may, but need not, consider the following factors:

(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community.

Cooper , 259 F.3d at 199 (citing Daubert , 509 U.S. at 592–94, 113 S.Ct. 2786 ). This court has recognized: "Although Daubert provides factors by which to evaluate the reliability of expert testimony, ... the inquiry under [ FED. R. EVID. ] 702 is flexible." Hickerson v. Yamaha Motor Corp. , C/A No. 8:13-cv-02311-JMC, 2016 WL 4055025, at *3 (D.S.C. July 29, 2016), aff'd , 882 F.3d 476, 481–83 (4th Cir. 2018). The Daubert factors are neither dispositive nor exhaustive. Kumho Tire Co. , 526 U.S. at 150, 119 S.Ct. 1167. The Fourth Circuit recently explained that "factual underpinnings" regarding an expert's conclusions concern the credibility and weight of an expert's testimony, not the admissibility of the expert's opinion. Bresler , 855 F.3d at 195 (quoting Structural Polymer Grp. , 543 F.3d at 997 ).

Applying those principles to Mr. Van Bruggen's opinion about the open-span bridge, Mr. Van Bruggen used a computer program—one that is used by the Federal Emergency Management Agency ("FEMA") and the United States Army Corps of Engineers ("USACE") —known as HEC-RAS to formulate his opinions. (ECF No. 157-1 at 8.) Utilizing HEC-RAS, Mr. Van Bruggen produced two models, indicating the "comparative water surface elevations," for specific flooding scenarios with and without CSX's current railroad embankment. (Id. at 1.) In order to show the flooding impacts without CSX's railroad embankment, Mr. Van Bruggen removed "the geometrical representation" of the embankment. (Id. at 10.) First, HEC-RAS, which was utilized by Mr. Van Bruggen, "enjoys general acceptance within the relevant scientific community" because both FEMA and USACE utilize the program for studying water flows and floodplain determinations. See Floodplain Modeling Manual: Hydrologic Engineering Center-River Analysis System Procedures for HEC-2 Modelers , FED. EMERGENCY MGMT. AGENCY , https://www.fema.gov/floodplain-modeling-manual-hydrologic-engineering-center-river-analysis-system-procedures-hec-2 (last updated Aug. 18, 2015); HEC-RAS , U.S. ARMY CORPS OF ENG'RS , https://www.hec.usace.army.mil/software/hec-ras/ (last visited July 17, 2019).¹⁵ Thus, because HEC-RAS has been explicilty endorsed and "general[ly] accept[ed]" by government agencies and private firms operating within this specialized field, the court finds that this factor endorses the reliability of Mr. Van Bruggen's methodology, and the court accords this factor great weight. See generally City of Pomona v. SQM N. Am. Corp. , 750 F.3d 1036, 1045–46 (9th Cir. 2014) (holding that an expert's underlying methodology need not be endorsed by a government agency in order to be reliable); United States v. Adam Bros. Farming, Inc. , 369 F. Supp. 2d 1166, 1172 n.4 (C.D. Cal. 2003) ("The HEC-RAS model is used by private sector and governmental agencies to simulate river flow." (citation omitted)). Secondly, Mr. Van Bruggen has "tested" his theory by utilizing HEC-RAS to perform "model run[s]" of the different flooding scenarios, and his theory "can be tested" by another expert if they utilize HEC-RAS, a publicly available program, and duplicate his methods.¹⁶ (See ECF No. 157-1 at 10–11.) See also HEC-RAS , U.S. ARMY CORPS OF ENG'RS , https://www.hec.usace.army.mil/software/hec-ras/download.aspx (last visited July 18, 2019). Additionally, HEC-RAS clearly contemplates the ability of a user to alter "hydraulic structure data," which can include the existence or non-existence of any bridges, dams, or culverts. See U.S. ARMY CORPS OF ENG'RS , CPD-68, HEC-RAS: RIVER ANALYSIS SYSTEM 36 (2016). Thus, Mr. Van Bruggen's use of HEC-RAS in his delineated manner, which included altering the existing water structures in order to perform "model runs," is by no means an anomaly to the functionality of the program. See id. As such, the ability to test Mr. Van Bruggen's work further supports the reliability of his underlying methodology.

15 Under the Federal Rules of Evidence, the court is permitted to "take judicial notice on its own." Fed. R. Evid. 201(c). Moreover, the court may take judicial notice of a fact "that is not subject to reasonable dispute" because it is either "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(1)–(2). Generally, it is appropriate for the court to take judicial notice of public information from government entities. See United States v. Garcia , 855 F.3d 615, 621 (4th Cir. 2017) ("This court and numerous others routinely take judicial notice of information on state and federal government websites."). See also Daniels-Hall v. Nat'l Educ. Ass'n , 629 F.3d 992, 998–99 (9th Cir. 2010) ; Hall v. Virginia , 385 F.3d 421, 424 & n.3 (4th Cir. 2004) ; See Gerritsen v. Warner Bros. Entm't Inc. , 112 F. Supp. 3d 1011, 1035 (C.D. Cal. 2015) ("Under Rule 201, the court can take judicial notice of ‘[p]ublic records and government documents available from reliable sources on the [i]nternet,’ such as websites run by governmental agencies." (citations omitted)). The court takes judicial notice of these websites for the limited purpose of indicating the acceptance and implementation of HEC-RAS by certain government agencies. See Coal. for a Sustainable Delta v. Fed. Emergency Mgmt. Agency , 812 F. Supp. 2d 1089, 1093 (E.D. Cal. 2011) ("[J]udically noticed documents may be considered only for limited purposes.").

16 The results of Mr. Van Bruggen's model runs are provided within his report as attached exhibits. (ECF No. 157-1 at 29–32.)

Moreover, it is immaterial that Mr. Van Bruggen's study at issue has not been subject to peer review because what is far more important is whether his underlying methodology and techniques have been subject to peer review. See In re TMI Litig. Cases Consol. II , 911 F. Supp. 775, 818 (M.D. Pa. 1996). In the instant case, HEC-RAS has been subject to peer review, which further lends support to the reliability of Mr. Van Bruggen's opinion. See YONGPING YUAN & KAMAL QAISER, U.S. ENVTL. PROT. AGENCY , FLOODPLAIN MODELING IN THE KANSAS RIVER BASIN USING HYDRAULIC ENGINEERING CENTER (HEC) MODELS : IMPACTS OF URBANIZATION AND WETLANDS FOR MITIGATION 7 (2011) ("HEC-RAS has been present in the public realm for more than 15 years and has been peer reviewed (HEC, 2010c).").¹⁷ Lastly, the court notes that CSX does not seem to truly challenge the reliability of Mr. Van Bruggen's opinion regarding the open-span bridge because it has failed to take any position regarding the underlying data, methodology, and techniques that form the bases of Mr. Van Bruggen's opinion. (See ECF No. 164 at 23–24.) Instead, CSX has only challenged the hypothetical nature of Mr. Van Bruggen's opinion, which the court has addressed in the preceding section on Daubert 's relevancy prong. See supra Part III.A.i. For these reasons, taken together , the court holds that Mr. Van Bruggen is a reliable expert, for purposes of Daubert , including his opinion concerning the open-span bridge.

17 Generally, a federal district court may take judicial notice of "[p]ublic records and government documents [that] are generally considered ‘not to be subject to reasonable dispute.’ " U.S. ex rel. Dingle v. BioPort Corp , 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003) (citing Jackson v. City of Columbus , 194 F.3d 737, 745 (6th Cir. 1999) ). There is no indication that this article from the Environmental Protection Agency ("EPA"), and the extremely narrow statement within the article upon which the court relies, is subject to reasonable dispute and nor can its authenticity be challenged. See Bourbia v. S.C. Johnson & Son, Inc. , 375 F. Supp. 3d 454, 460 n.1 (S.D.N.Y. 2019) ("Pursuant to Fed R. Evid. 201, the [c]ourt takes judicial notice of documents relating to the approval of Off! Clean Feel and documents available on the website of the Environmental Protection Agency, because the documents' authenticity have not been and cannot be reasonably disputed." (citations omitted)). In addition, as a public record, the court is also able to properly take judicial notice of the article and its statement regarding HEC-RAS. See Goldfarb v. Mayor & City Council of Balt. , 791 F.3d 500, 508–09 (4th Cir. 2015). Therefore, pursuant to Federal Rule of Evidence 201(c), the court takes judicial notice of this article from the EPA, but only for the limited purpose of indicating that HEC-RAS has been subject to peer review. See Coal. for a Sustainable Delta , 812 F. Supp. 2d at 1093.

B. The Relevance and Reliability of Mr. Carlos Cometto's Opinions

As it relates to Mr. Cometto, CSX seeks to exclude his testimony in its entirety. (ECF No. 164 at 25.) Submitting that his opinions lack sufficient reliability under Daubert and Rule 702, CSX specifically attacks Mr. Cometto's opinions concerning the lifespan and maintenance of the culverts and length of the 2015 rainfall event. (Id. at 10–12, 19–20.) At bottom, CSX vigorously maintains that Mr. Cometto "makes no attempt to explain any analysis or methodology, much less explain how his opinions are: (i) derived from ‘sufficient facts or data,’ or (ii) the product of ‘reliable principles and methods,’ ‘reliably applied’ to this case." (Id. at 20 (quoting FED. R. EVID. 702(b)–(d) ).) In defending Mr. Cometto from exclusion, Plaintiffs emphasize that his opinions are rooted in "the facts and data presented by other witnesses." (ECF No. 200 at 13.) As it relates to the lifespan of the culverts, Plaintiffs state that Mr. Cometto relied upon the Federal Highway Administration's Culvert Inspection Manual, while CSX counters that he only cited "[a] 1994 brochure from Rinker Materials, a concrete pipe manufacturer (i.e., who offers a competing product to [metal culverts] and thus has financial incentive to disparage the longevity of [metal culverts] ), in support of his claim that the ‘consensus’ view is that [metal culverts] last[ ] only 10-35 years." (ECF No. 200 at 8; ECF No. 204 at 10 (emphasis in original) (citation omitted).) Regarding the storm itself, Plaintiffs emphasize that Mr. Cometto's opinion is based upon the charts and data from Mr. Cronin, while CSX contends that his opinion fails to consider "contrary facts." (ECF No. 164 at 11–12, 19; ECF No. 200 at 9.)

i. The Relevance of Mr. Cometto's Opinions

As a threshold matter, the court observes that CSX does not suggest that Mr. Cometto's opinions are irrelevant under Daubert 's relevancy prong. (See ECF No. 164 at 19–21.) See also McCrary v. Elations Co. LLC , No. EDCV 13-0242 JGB (SPx), 2014 WL 12589137, at *7 C.D. Cal. Dec. 2, 2014 (finding the relevancy of an expert when the defendant did not challenge the relevancy of the expert's restitution models); Williamson v. Hercules Offshore, Inc. , C/A No. 09-4539, 2011 WL 121554, at *1–3 (E.D. La. Jan. 11, 2011) (assuming the relevancy of an expert's opinion when the moving party did not challenge the opinion). Nevertheless, the court must still ensure that an expert's testimony is "relevant to the task at hand." Daubert , 509 U.S. at 597, 113 S.Ct. 2786. "Relevant evidence, of course, is evidence that helps ‘the trier of fact to understand the evidence or to determine a fact in issue.’ " Nease , 848 F.3d at 229 (quoting Daubert , 509 U.S. at 591, 113 S.Ct. 2786 ). "[T]he proposed testimony must have ‘a valid scientific connection to the pertinent inquiry as a precondition to admissibility.’ " Id. (quoting Daubert , 509 U.S. at 592, 113 S.Ct. 2786 ). Applying those legal principles, Mr. Cometto opines that CSX's culverts have a "life expectancy of 10 years to about 35 years before the perforation of the metal occurs." (ECF No. 164-8 at 10.) He also provides opinions regarding the temporal aspects of the rainfall event and states that CSX's "culverts affected all other properties on Rawl[s] Creek." (Id. ) He further states that there are "[f]ederal, [s]tate[,] and Lexington County requirements" that apply to CSX's culverts. (Id. ) These opinions are "relevant to the task at hand" because they directly support Plaintiffs' claims that CSX was (1) negligent in failing "to properly design, construct, maintain, monitor, operate, warn, and/or otherwise safely manage the culvert and drain" and (2) strictly liable for failing "to properly construct, maintain, monitor, operate[,] and/or otherwise manage [an] abnormally dangerous culvert and drain system ...." (ECF No. 132 at 7 ¶ 41, 14 ¶ 101.) Mr. Cometto's opinions directly implicate the maintenance of the culverts—maintenance clearly alleged as deficient within Plaintiffs' Amended Complaint—by opining that "there is no reference [that] the [culverts] ha[ve] been replaced in the past, maintenance done[,] or plans to replace [them] in the future." (ECF No. 164-8 at 10.) Accordingly, Mr. Cometto's opinions are relevant to this case as they go to the heart of Plaintiffs' claims of negligence and strict liability and certainly have a scientific connection to the "pertinent inquiry" before the court. Daubert , 509 U.S. at 592, 597, 113 S.Ct. 2786.

ii. The Reliability of Mr. Cometto's Opinions

As a threshold matter, Mr. Cometto is being offered as a permissible rebuttal expert to Mr. Cronin, one of CSX's experts. (See ECF No. 215.) Nevertheless, a rebuttal expert is still subject to the scrutiny of Daubert and must offer both relevant and reliable opinions. See United States v. Ancient Coin Collectors Guild , 899 F.3d 295, 318–19 (4th Cir. 2018) (holding a federal district court did not abuse its discretion when it required "rebuttal expert evidence" to be particularized to a specific legal issue); Navelski v. Int'l Paper Co. , 244 F. Supp. 3d 1275, 1301–03 (N.D. Fla. 2017) (applying Daubert to a rebuttal expert and finding his opinion "sufficiently grounded in his expertise and analysis of the facts of the case to render it reliable"); Scott v. Chipotle Mexican Grill, Inc. , 315 F.R.D. 33, 44 (S.D.N.Y. 2016) (noting that rebuttal experts must pass legal muster under Daubert ); Rivas v. Preston , C/A No. SA-11-CA-0193-FB, 2012 WL 7782960, at *1–4 (W.D. Tex. Feb. 29, 2012) (applying Rule 702 and Daubert to a rebuttal expert). See also Kumho Tire Co. , 526 U.S. at 147, 119 S.Ct. 1167 (holding that Rule 702 "applies to all expert testimony"). Generally, it is permissible for an expert to rely upon the "opinions and findings of other experts" to reach his or her expert conclusion, but only if "experts in their respective field would reasonably rely on the other expert's opinions and findings." In re Wright Med. Tech. Inc., Conserve Hip Implant Prods. Liab. Litig. , 127 F. Supp. 3d 1306, 1320 (N.D. Ga. 2015) (citations omitted). See also Gopalratnam v. Hewlett-Packard Co. , 877 F.3d 771, 789 (7th Cir. 2017) ("Of course, as a general matter, there is nothing objectionable about an expert relying upon the work [of] a colleague." (citations omitted)); Tamraz v. Lincoln Elec. Co. , 620 F.3d 665, 675 (6th Cir. 2010) ("[A]n expert may in some circumstances rely on other experts' testimony ...." (citation omitted)); Ohio Envtl. Dev. Ltd. P'ship v. Envirotest Sys. Corp. , 478 F. Supp. 2d 963, 976 (N.D. Ohio 2007) ("As such, ‘[u]nder Rule 703, an expert's testimony may be formulated by the use of the facts, data and conclusions of other experts.’ " (alteration in original) (quoting Asad v. Cont'l Airlines, Inc. , 314 F. Supp. 2d 726, 740 (N.D. Ohio 2004) )). A rebuttal expert witness "may criticize other experts' theories and calculations without offering alternatives." Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc. , 829 F. Supp. 2d 802, 834–35 (D. Minn. 2011) (citations omitted). In some instances, a proffered expert, including a rebuttal expert, should address "the validity of the opinions of the experts he relied upon" and not just show an "unblinking reliance" upon the opinions of other experts. In re TMI Lit. , 193 F.3d 613, 716 (3d Cir. 1999). This is so because "[a]n expert is not entitled to testify to opinions that rely on the opinion of another expert, simply because the other is an expert." Mooring Capital Fund, LLC v. Knight , 388 F. App'x 814, 820 (10th Cir. 2010) (citation omitted). In that same vein, an expert may not "be the mouthpiece" of another expert in an entirely different area of study because such an opinion would not indicate reliability. Dura Auto. Sys. of Ind., Inc. v. CTS Corp. , 285 F.3d 609, 614 (7th Cir. 2002). These nuanced considerations about the relationship between two experts require a rebuttal expert's opinions to be reliable under Daubert and Rule 702. See Faulkner v. Arista Records LLC , 46 F. Supp. 3d 365, 386 (S.D.N.Y. 2014) (holding that the standard for evaluating a rebuttal expert is "the same as for any expert witness" and that a rebuttal expert's opinion was sufficiently reliable for admissibility): In re ConAgra Foods, Inc. , 302 F.R.D. 537, 556 (C.D. Cal. 2014) ("An expert's sole or primary reliance on the opinions of other experts raises serious reliability questions." (citations omitted)).

As noted above previously, in order to determine the reliability of Mr. Cometto's opinions, the court may, but need not, consider the following factors:

(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community.

Cooper , 259 F.3d at 199 (citing Daubert , 509 U.S. at 592–94, 113 S.Ct. 2786 ). This court has recognized: "Although Daubert provides factors by which to evaluate the reliability of expert testimony, ... the inquiry under [ FED. R. EVID. ] 702 is flexible." Hickerson , 2016 WL 4055025, at *3. "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." General Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (emphasis in original). Rejecting expert testimony is not the rule, but is rather the exception. See In re Lipitor , 892 F.3d at 631. However, a federal district court may exclude an expert if it concludes that "there is simply too great an analytical gap between the data and the opinion proffered." General Elec. Co. , 522 U.S. at 146, 118 S.Ct. 512.

a. The Life Expectancy of Metal Culverts Before Perforation

In the instant case, Mr. Cometto first provides the following opinion in response to Mr. Cronin's assertion about the adequacy of the culverts (ECF No. 215 at 13–14), an opinion to which CSX strenuously objects to: "It must be considered that it is a general consensus that corrugated steel pipe has a life expectancy of 10 years to about 35 years before the perforation of the metal occurs. There is no reference if the [culverts] ha[ve] been replaced in the past, maintenance done or plans to replace [them] in the future." (ECF No. 164-8 at 2.) In reaching his opinion, Mr. Cometto only cites to a document from Rinker Materials, a manufacturer of concrete pipes and other products. (Id. (citing RINKER MATERIALS , CORRUGATED STEEL PIPE 1 (1994), https://www.rinkerpipe.com/TechnicalInfo/files/InfoBriefs/IS304CorrugatedSteelPipe.pdf).) Besides this one document, Mr. Cometto cites to no other studies for his opinion regarding the life expectancy of metal culverts. (See ECF No. 164-8 at 2.) As it relates to Mr. Cometto's sole reliance upon the document from Rinker Materials, which seems to be his only methodology and source for opining about the "life expectancy" of metal culverts, is problematic under Daubert in several respects. (See id. ) First, there is no indication that this specific statement from Rinker Material's document has been subject to any type of peer review, thereby significantly undermining its reliability. See RINKER MATERIALS , CORRUGATED STEEL PIPE 1 (1994).¹⁸ Secondly, as correctly noted by CSX, as part of Rinker Materials' statement about the life expectancy of metal culverts before perforation of the metal occurs, Rinker Materials cites to the Federal Highway Administration's Culvert Inspection Manual ("the Culvert Manual").¹⁹ RINKER MATERIALS , CORRUGATED STEEL PIPE 1 (1994) (citing FED. HIGHWAY ADMIN. , U.S. DEP'T OF TRANSP. , REPORT NO. FHWA-IP-86-2, CULVERT INSPECTION MANUAL 114 (1986), https://www.fhwa.dot.gov/engineering/hydraulics/pubs/ip862.pdf). However, the cited portion of the Culvert Manual only provides assigned ratings for a metal culvert's overall condition and does not say anything explicitly about a metal culvert's life expectancy. See FED. HIGHWAY ADMIN. , U.S. DEP'T OF TRANSP. , REPORT NO. FHWA-IP-86-2, CULVERT INSPECTION MANUAL 114 (1986).²⁰ Moreover, upon carefully searching the entire two hundred twenty (220) pages of the Culvert Manual, there is absolutely nothing stating that there is a "general consensus" of ten (10) to thirty-five (35) years being the life expectancy of metal culverts before the perforation of metal. See id. at 1–220. Put simply, the Culvert Manual provides no support for Rinker Materials' proposition, which thereby impacts Mr. Cometto's opinion, about the life expectancy of metal culverts before perforation. See id. For those two reasons alone, "there is simply too great an analytical gap between the data and the opinion proffered." General Elec. Co. , 522 U.S. at 146, 118 S.Ct. 512.

18 Neither party included this document as an exhibit, however, neither party disputes Mr. Cometto's citation to the document within his report. (See ECF Nos. 164, 200.) Accordingly, the court is compelled to take judicial notice of the Rinker Materials' document pursuant Rule 201 of the Federal Rules of Evidence because the parties did not provide the court with appropriate documentation.

19 It is worth noting that Plaintiffs expressly state that Mr. Cometto "[c]ites data taken from the Federal Highway Administration's Culvert Inspection Manual [ ("the Culvert Manual") ] to indicate that [metal culverts] ha[ve] a life expectancy of 10 to 35 years before perforation of the metal occurs." (ECF No. 200 at 8.) However, Plaintiffs' post-hoc justification of Mr. Cometto's report is quite insincere because, even though the Rinker Material's article cites to the Culvert Manual, Mr. Cometto's report never explicitly cites to or relies upon the Culvert Manual in any respect. (See ECF No. 164-8 at 2, 29–30.) There is simply no indication that Mr. Cometto reviewed any information contained within the Culvert Manual as Plaintiffs suggest. (See id. )

20 Neither party included the Culvert Manual as an exhibit, however, neither party disputes that the Culvert Manual is mentioned within the article by Rinker Materials. (See ECF Nos. 164, 200.) Indeed, Plaintiffs improperly suggest that Mr. Cometto cited to it, while CSX emphasizes that it is mentioned within the document drafted by Rinker Materials (See ECF Nos. 200, 204.) As such, because the Culvert Manual is located on a government website and is readily available to the public, the court takes judicial notice of the Culvert Manual under Rule 201 of the Federal Rules of Evidence. See Garcia , 855 F.3d at 621.

However, the issues do not end there. There is no indication that Mr. Cometto's opinion, which is verbatim from Rinker Materials' article, has been tested or can be tested. (See ECF No. 164-8 at 2.) The article upon which Mr. Cometto relies does not indicate that its "general consensus" proposition was tested or can be tested, and it certainly does not detail what methodology was employed to reach the conclusion. See RINKER MATERIALS , CORRUGATED STEEL PIPE 1 (1994). As it further relates to Mr. Cometto and Rinker Materials' opinion, there is no indication that their opinion or underlying methodology, whatever that underlying methodology could be, "enjoys general acceptance" in the relevant scientific community because CSX presents evidence suggesting that calculating the service life of metal culverts depends upon numerous factors, scientific calculations, and may easily extend beyond thirty-five (35) years.²¹ (ECF Nos. 164-1, 164-2, 164-3.) Lastly, the rate of error for Mr. Cometto and Rinker Materials' opinion is unknown, and Mr. Cometto certainly does not identify one. (See ECF No. 164-8 at 2.) Thus, these Daubert factors also weigh strongly against the admissibility of Mr. Cometto's opinion, which merely repeats the unsupported belief of Rinker Materials.

21 While Mr. Cometto did possess pictures of the drainage culverts, there is no indication from his report that he considered or even used those pictures to determine the life expectancy of the culverts before the perforation of metal would occur. (See ECF No. 164-8 at 2.) If Mr. Cometto truly went this route, he conducted a visual inspection with an unknown error rate. See BASF Corp. v. Sublime Restorations, Inc. , 880 F. Supp. 2d 205, 214 (D. Mass. 2012) ("Miller grounds his opinion on his own visual inspection, a method with an unknown error rate as his technique amounts to little more than ‘eyeballing’ the various [ ] materials." (citation omitted)). See also Blake v. Bell's Trucking, Inc. , 168 F. Supp. 2d 529, 532–33 (D. Md. 2001).

Based on the foregoing, Mr. Cometto's opinion relating to the life expectancy of the culverts is insufficiently reliable for admissibility under Daubert as too great an analytical gap exists. Daubert , 509 U.S. at 589, 113 S.Ct. 2786 ; General Elec. Co. , 522 U.S. at 146, 118 S.Ct. 512. Additionally, by simply reciting, verbatim , a blanket statement from Rinker Materials, Mr. Cometto has done nothing more than provide an "unblinking reliance" upon the findings of Rinker Materials, without conducting any analysis or testing himself, which further exacerbates the reliability of Mr. Cometto's opinion relating to the life expectancy of culverts. In re TMI Lit. , 193 F.3d at 716. Accordingly, while this issue is certainly closer than the court's assessment of Mr. Van Bruggen, on balance , the court finds that Mr. Cometto's opinion must be excluded under Daubert because Plaintiffs have failed to carry their Daubert burden because they do not show that Mr. Cometto's sole reliance upon the article from Rinker Materials—an article which has not been subject to peer review or generally accepted in the relevant scientific community—is admissible by a preponderance of proof.²² Cooper , 259 F.3d at 199 (quoting Daubert , 509 U.S. at 592 n.10, 113 S.Ct. 2786 ).

22 Interestingly, CSX has only challenged the reliability of Mr. Cometto's opinions as it relates to his rebuttal to Mr. Cronin. (See ECF No. 164.) However, Mr. Cometto provided additional opinions attempting to rebut other experts retained by Lexington County and SCE&G, which CSX has failed to challenge in its instant Motion. (Compare ECF No. 164 at 9–14, 19–21, – ECF No. 164-8 at 11–28.) Therefore, the court's exclusion of Mr. Cometto is limited to his prospective testimony relating to Mr. Cronin and has no bearing in regard to his other rebuttal opinions. See Linde v. Arab Bank, PLC , 922 F. Supp. 2d 316, 322 (E.D.N.Y. 2013) (observing that a defendant did not challenge specific expert opinions regarding payments involving Arab Bank) Holland v. Walter Kidde Portable Equip., Inc. , No. 2:05-cv-325-TMP, 2008 WL 6759950, at *4 n.5 (N.D. Ala. Mar. 24, 2008) (noting that an expert could opine about subjects that were not challenged by a moving party); In re Ocean Bank , 481 F. Supp. 2d 892, 904 (N.D. Ill. 2007) (permitting an expert to testify about an opinion that was not specifically challenged by a plaintiff).

b. The Intensity of the Rainfall Event

CSX also seeks to exclude Mr. Cometto's opinion that the October storm should be referred to as a "350 to 390-yr–15 hour storm" because he "ignore[s] basic facts regarding this epic, 4-day storm event." (ECF No. 164 at 11 (emphasis in original) (quoting ECF No. 164-8 at 3).) Within his report, Mr. Cometto specifically opines that the "October 4th storm (one day), as stated, should probably be referred to as a 350 to 390-yr (15 hr) event, since this particular period of rain caused the flooding. " (ECF No. 164-8 at 10 (emphasis added).) In support of this opinion, Mr. Cometto relies upon figures and tables located within Mr. Cronin's report, including plotted data from the United States Geological Survey ("USGS") and National Oceanic Atmospheric Administration ("NOAA"). (See id. at 3.) (See also ECF No. 157-6 at 13–15.) Using Mr. Cronin's own tables, Mr. Cometto believes that the "precipitation condition can be portrayed differently." (ECF No. 164-8 at 3.)

In Mr. Cronin's report, he describes the October 2015 storm as "very intense with an extreme duration (9.8 inches in 15 hours)." (ECF No. 157-6 at 32.) To apparently show an inconsistency between Mr. Cronin's view of the storm's length of precipitation and historical occurrence, Mr. Cometto examined Figure 8 and Table 2 of Mr. Cronin's report. (ECF No. 164-8 at 3.) Using Figure 8 and Table 2, Mr. Cometto isolates the duration of the rainfall event to opine that the storm "can be labeled as a 350[-] to 390-[year]" event in accordance with Table 2. (See id. ) CSX's only issue with Mr. Cometto's methodology is that he "ignores the totality of the storm" and only offers "snippets from this epic, 4-day event" by focusing on the fifteen (15) hours of rainfall. (See ECF No. 164 at 19.) As a rebuttal expert, however, Mr. Cometto "may criticize other experts' theories and calculations without offering alternatives." Aviva Sports, Inc. , 829 F. Supp. 2d at 834–35. Here, Mr. Cometto's methodology is reliable because he is examining the thorough data provided by Mr. Cronin, which includes detailed participation estimates from the USGS and precipitation frequencies from NOAA. (ECF No. 157-6 at 14–15.) Notably, CSX takes no issue with the reliability of that underlying data, only his interpretation and characterization of the event. (See ECF No. 164.) Even if Mr. Cometto's characterization is a minor mistake, that alone does not render his opinion inadmissible under Daubert . See Amorgianos v. Nat'l R.R. Passenger Corp. , 303 F.3d 256, 267 (2d Cir. 2002). Additionally, Mr. Cometto's examination of the data would be helpful to a jury in critiquing Mr. Cronin's opinion. See Faulkner , 46 F. Supp. 3d at 386 (finding that a rebuttal expert who arrived at an "alternative calculation" different from another expert would be "helpful to the jury" and the moving party did not identify a "serious flaw" in the rebuttal opinion's analysis). Any disagreement about Mr. Cometto's opinion in this regard can be squarely addressed on cross examination in front of a jury. See id.

Lastly, as it is worth observing, to the extent that Mr. Cometto's conclusion about severity of the storm conflicts with that of Mr. Van Bruggen or Mr. Cronin, which CSX is particularly eager to reveal, such a conflict bears upon the weight of Mr. Cometto's opinion and not his admissibility. See Cooper , 259 F.3d at 202 ; Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC , 571 F.3d 206, 214 (2d Cir. 2009) (citation omitted); Westberry v. Gislaved Gummi AB , 178 F.3d 257, 265–66 (4th Cir. 1999) (citations omitted); Washington v. Kellwood Co. , 105 F. Supp. 3d 293, 325–28 (S.D.N.Y. 2015) (holding that "[n]othing in Rule 702 requires the witness to be an expert in being an expert" and an argument "border[ed] on the absurd" when it suggested that "rebuttal expert testimony ... be grounded in knowledge of how to give rebuttal expert testimony"); Smith v. Ortho Pharm. Corp. , 770 F. Supp. 1561, 1569 (N.D. Ga. 1991) (citing Singer v. E.I. du Pont de Nemours & Co. , 579 F.2d 433, 443 (8th Cir. 1978) ). Indeed, it seems as much because CSX disagrees with the way in which Mr. Cometto interpreted Mr. Cronin's data, and not data and methodology forming the bases of Mr. Cronin's tables upon which Mr. Cronin relies . (See ECF No. 164.) Therefore, the court denies CSX's Motion as it relates to Mr. Cometto's opinion based upon his alternate interpretation of Mr. Cronin's tables, and CSX's concerns are best left to the adversary system. See Amorgianos , 303 F.3d at 267.

c. The Culverts' Role in the Flooding

CSX points out that Mr. Cometto "goes on to state [that] the [c]ulverts ‘are a primary cause of the flooding experienced.’ " (ECF No. 164 at 12 (quoting ECF No. 164-8 at 5).) Plaintiffs admit that Mr. Cometto's opinion is based upon "significant data and evidence presented by Mr. Van Bruggen[,] which indicated precisely that." (ECF No. 200 at 9.) However, Mr. Cometto's opinion is glaringly problematic in several respects to withstand Daubert scrutiny.

While Mr. Cometto has reviewed the report of Mr. Van Bruggen, his review of the report, in and of itself, is not enough to overcome the rigors of Daubert . See Dura Auto. Sys. of Ind., Inc. , 285 F.3d at 614. Mr. Cometto states that "[t]he CSX culverts backwater elevations as shown in [Mr.] Van Bruggen's [ ] [r]eport[ ] are a primary cause of the flooding experienced ...." (ECF No. 164-8 at 5 (emphasis added).) Based on his statement within the report, it seems that Mr. Cometto examined the findings of Mr. Van Bruggen in order to form his opinion. (See id. ) However, besides repeating an opinion which Mr. Van Bruggen is prepared to provide (ECF No. 157-1 at 11–12), Mr. Cometto has done nothing to corroborate or validate the testing of Mr. Van Bruggen in order to form this specific opinion. (See ECF No. 164-8 at 5.) Mr. Cometto has performed no testing in arriving at this opinion and has not even explained how his experiences may have informed him in reaching his conclusion , which significantly undermines the reliability of his opinion. See Belville , 919 F.3d at 233–35 (affirming a district court's exclusion of three experts when none of the experts tested any of the vehicles belonging in their purported class when they alleged that those vehicles possessed a defect); Nease , 848 F.3d 219 at 232–33 (holding that a district court abused its discretion when it admitted an expert who "conducted no tests and used no ‘methodology’ for reaching his opinions other than merely observing dirt on the [ ] speed control assembly components"). Moreover, because Mr. Cometto has performed no testing to reach this opinion, it is impossible for the court to discern the methodology supporting this opinion and what the potential rate of error may or may not be. See Nease , 848 F.3d 219 at 232–33. The court is compelled to preclude Mr. Cometto from testifying as to whether the culverts were a "primary cause" of the flooding experienced by Plaintiffs because he is once again adhering to an "unblinking reliance" upon the opinions of other experts and simply unreliable. In re TMI Lit. , 193 F.3d at 716. Once again, Plaintiffs have failed to show that this opinion is admissible under Daubert by a preponderance of proof as they provide very little evidence that Mr. Cometto's opinion is reliable. Cooper , 259 F.3d at 199 (quoting Daubert , 509 U.S. at 592 n.10, 113 S.Ct. 2786 ).

d. The Applicability of Local, State, and Federal Regulations

Lastly, CSX challenges Mr. Cometto's proffered opinions concerning local, state, and federal regulations. (ECF No. 164 at 12–14.) CSX suggests that Mr. Cometto "conflates the actual design criteria in the manuals with the parameters of a hydraulic study." (Id. ) In response, Plaintiffs only emphasize that Mr. Cometto merely "observed that there are a number of different guidelines and standards that would recommend a more thorough maintenance and review of the culverts than those followed by CSX[ ]." (ECF No. 200 at 10.)

Here, Mr. Cronin, who Mr. Cometto seeks to rebut , opined as follows: "Based on my experience, no [f]ederal, [s]tate, or [l]ocality would design culverts to pass a 500-year flood event as doing so far exceeds any reasonable engineering design standard or criteria." (ECF No. 157-6 at 36 (emphasis added).) Mr. Cometto's rebuttal opinion is that "[t]here are [f]ederal, [s]tate[,] and Lexington County requirements since the [metal culvert's] are in the flood plain of Rawl[s] Creek." (ECF No. 164-8 at 10 (emphasis added).) In critiquing Mr. Cronin's report, Mr. Cometto suggests that the report "does not mention that these standards should be considered to be a minimum required for design." (Id. at 6.) Mr. Cometto specifically opines that "the [r]eport does not reference Lexington County requirements such as the Floodplain Analysis for current developments." (Id. at 9.) In support of his opinion, Mr. Cometto cites to numerous guidelines from Executive Order 11988, the South Carolina Department of Transportation ("SCDOT"), Texas Department of Transportation, and Lexington County Land Development Manual. (Id. at 6–9 (citing Exec. Order No. 11,988, 42 Fed. Reg. 26,951 (May 24, 1977) ; S.C. DEP'T OF TRANSP. , REQUIREMENTS FOR HYDRAULIC DESIGN STUDIES (2009), https://www.scdot.org/business/hydraulic-design-studies.aspx (last visited July 22, 2019); TEX. DEP'T OF TRANSP. , HYDRAULIC DESIGN MANUAL 69 (2016), https://onlinemanuals.txdot.gov/txdotmanuals/hyd/hyd.pdf (last visited July 22, 2019); LEXINGTON CTY. PUB. WORKS STORMWATER DIV. , LEXINGTON COUNTY LAND DEVELOPMENT MANUAL (2016), https://lex-co.sc.gov/sites/default/files/Documents/Lexington% 20County/Departments/Public% 20Works/LDM% 20Effective% 201% 201% 2017.pdf (last visited July 22, 2019)).)

As a threshold matter, CSX does not contend that the underlying materials upon which Mr. Cometto based his opinion are unreliable. (See ECF No. 164 at 12–14.) Instead, it suggests that Mr. Cometto "conflates the actual design criteria in the manuals with the parameters of a hydraulic study." (Id. at 12.) However, CSX's reading of Mr. Cometto's report is misguided because his report says the following: "As to SCDOT design requirements cited in the report ... it can be added ...." (ECF No. 164-8 at 8 (emphasis in original) (emphasis added).) By using the phrase "it can be added," Mr. Cometto is supplementing omissions that he believes were omitted from Mr. Cronin's report, which assists him in attempting to rebut his opinions. (See id. ) For example, Mr. Cometto cites a portion of SCDOT's Requirements for Hydraulic Design Studies, which acknowledges that: "For all types of bridge or bridge-sized culvert studies , the 2-, 10-, 25-, 50-, 100-, and 500-year frequency discharges are needed ." (Id. (emphasis added) (emphasis in original) (citing S.C. DEP'T OF TRANSP. , REQUIREMENTS FOR HYDRAULIC DESIGN STUDIES 11 (2009)).) As just one specific example, the aforementioned section cited verbatim by Mr. Cometto expressly contemplates that it involves culvert studies and not design requirements. (See id. ) Moreover, concerning federal regulations, Mr. Cometto identifies a federal regulation stating that "[n]o minimum design flood [for encroachments] is specified for Interstate highway ramps and frontage roads or for other highways ." (See id. (citing 23 C.F.R. 650.115(2) (emphasis omitted) (emphasis added)).) Mr. Cometto uses this federal regulation to emphasize that design requirements are often minimums. (See id. ) Further attempting to rebut Mr. Cronin's opinion, Mr. Cometto cites to Lexington County's Land Development Manual ("Development Manual"), which indicates that a floodplain analysis "shall include the ... 500-year, 24-hour storm event[ ]." (Id. at 9 (citing LEXINGTON CTY. PUB. WORKS STORMWATER DIV. , LEXINGTON COUNTY LAND DEVELOPMENT MANUAL 183 (2016)).) Mr. Cometto acknowledges, in accordance with CSX's position (ECF No. 164 at 13), that the analysis applies to "current developments." (ECF No. 164-8 at 9.) This consensus does not indicate any unreliability on the part of Mr. Cometto's assessment of the Development Manual to reach his conclusion. (Compare ECF No. 164 at 13, with ECF No. 164-8 at 9.) While this type of opinion is obviously not subject to peer review or testing, it is sufficient for Mr. Cometto to draw upon his professional experience and review of a range of local, state, and federal guidelines for him to reach this particular, rebuttal opinion to Mr. Cronin. See Huskey v. Ethicon, Inc. , 29 F. Supp. 3d 691, 735 (S.D.W. Va. 2014).

Generally, an expert's use of government guidelines may be reliable in certain circumstances. Here, Mr. Cometto is not suggesting that CSX violated any of these guidelines, but merely points out that the guidelines exist, including SCDOT's requirements for culvert studies to affirmatively contemplate 500-year "frequency discharges," in an attempt to rebut Mr. Cronin, an expert who broadly professes that no federal, state, or local entity would design culverts to withstand a 500-year flood. (Compare ECF No. 157-6 at 36, with ECF No. 164-8 at 6–10.) In this instance, CSX is chiefly concerned with the weight of Mr. Cometto's opinion because it in no way challenges the reliability of the underlying regulations and requirements upon which Mr. Cometto forms his opinion. (See ECF No. 164.) Instead, CSX attempts to improperly recharacterize what Mr. Cometto is prepared to opine about and, in reality, highlights a disagreement between two experts, this issue of weight is best left to the province of a jury. See generally Nat'l Bank of Commerce of El Dorado v. Associated Milk Producers, Inc. , 191 F.3d 858, 862 (8th Cir. 1999) ("[A] district court is not free to choose between the conflicting views of experts whose principles and methodology are reliable and relevant."); Faulkner , 46 F. Supp. 3d at 386 ("[W]here the expert's reasonably disagree on the conclusions presented, the jury, not the judge should decided among the opinions." (citing Kumho Tire Co. , 526 U.S. at 153, 119 S.Ct. 1167 )); Munn v. Hotchkiss School , 24 F. Supp. 3d 155, 172 (D. Conn. 2014) ("Moreover, when there is a disagreement among qualified experts who meet Daubert's requirements for admission, there is necessarily a disputed factual issue that requires resolution by the trier of fact."). Indeed, at no point within this section of the report does Mr. Cometto opine that CSX should have designed its culverts to withstand a 500-year flood, as his ultimate opinion from his examination from the requirements is that there are additional requirements that apply to CSX , which were not mentioned by Mr. Cronin. (See ECF No. 164-8 at 6–10.) For these reasons, the court denies CSX's Motion as it relates to Mr. Cometto's opinions concerning the existence of federal, state, and local guidelines and requirements.

IV. CONCLUSION

After careful consideration of CSX's Motion, Plaintiff's Response, and CSX's Reply, the court GRANTS IN PART and DENIES IN PART CSX's Motion to Exclude or Limit the Testimony of Plaintiffs' Liability Experts, Carlos E. Cometto, P.E., and Rick Van Bruggen, P.E. (3:15-cv-04660-JMC, ECF No. 164; 3:15-cv-04694-JMC, ECF No. 148; 3:15-cv-04695-JMC, ECF No. 147; 3:15-cv-04877-JMC, ECF No. 147; 3:15-cv-04887-JMC, ECF No. 148; 3:15-cv-04888-JMC, ECF No. 146; 3:15-cv-04892-JMC, ECF No. 147; 3:15-cv-04893-JMC, ECF No. 146; 3:15-cv-04894-JMC, ECF No. 146; 3:15-cv-04896-JMC, ECF No. 146; 3:15-cv-04897-JMC, ECF No. 147; 3:15-cv-04898-JMC, ECF No. 147; 3:15-cv-04920-JMC, ECF No. 149; 3:15-cv-04922-JMC, ECF No. 148; 3:16-cv-01141-JMC, ECF No. 142; 3:16-cv-01142-JMC, ECF No. 151; 3:16-cv-01143-JMC, ECF No. 142). Specifically, the court GRANTS CSX's Motion as it relates to Mr. Cometto, but only as it relates to his opinions about the life expectancy of the culverts and whether the culverts caused the flooding, and DENIES CSX's Motion as it relates to Mr. Cometto's opinions about the intensity of the rainfall event and local, state, and federal guidelines. Specifically, the court DENIES CSX's Motion as it relates to Mr. Van Bruggen.

IT IS SO ORDERED.