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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CONSOLIDATED RAIL CORPORATION

and NORFOLK SOUTHERN RAILROAD

COMPANY,

Plaintiffs/Counter-Defendants,

v.

GRAND TRUNK WESTERN RAILROAD

COMPANY,

Defendant/Counter-Plaintiff.

 /

Case No. 09-cv-10179

Honorable Nancy G. Edmunds

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE

THOMAS J. CONDON 

This matter comes before the Court on Plaintiffs’ motion to exclude the expert

testimony of Thomas J. Condon. For the reasons set forth below, Plaintiffs’ motion is

DENIED.

I. Facts

A. Arbitration and Tracking Rights Agreement

On June 7, 1993, Plaintiffs sent Defendant a letter, notifying Defendant that Plaintiffs

intended to exercise their right, under an 1897 Agreement, to cross Defendant’s tracks.

(Def.’s Mot. for Summ. J. 6.) The letter stated:

[Plaintiffs are] notifying [Defendant] that they intend to exercise the right to

access Trenton Steel Storage located just north of Harrison Street and east

of your tracks in Trenton, MI, adjacent to “FN” interlocking. [Plaintiffs] intend[]

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to apply the right by installing a diamond to cross your tracks and sidetrack

to access Trenton Steel Storage.

(Id.) The letter mistakenly identifies Trenton Steel Storage as being located to the east

of Defendant’s tracks, when it is actually located to the west. (Id.) Defendant did not

agree to Plaintiffs’ plan to cross, maintaining that the 1897 Agreement allows Plaintiffs

to cross Defendant’s tracks to service industries only to the east of the FN Interlocking,

not to the west of it. (Id. at 7-8.) After going back and forth on this issue and failing to

come to an agreement, Plaintiffs and Defendant decided to submit the dispute to

arbitration. (Id. at 8.) Prior to the arbitration, on June 23, 1994, the parties agreed that

if the arbitrators ruled in Plaintiffs’ favor, then Defendant would grant Plaintiffs access to

Trenton Steel Warehouse by a trackage rights agreement. 

On July 13, 1994, the parties submitted a very narrow question to the arbitrator. 

They asked:

Do [Plaintiffs] have the right, pursuant to the [1897 Agreement and two of the

1900s crossing] Agreements, to cross the tracks, facilities, right-of-way, and

other property of [Defendant] in or near Trenton, Michigan for the purpose of

providing [Plaintiffs] access to and the ability to provide rail freight

transportation service to the Trenton Steel Warehouse.

(Id.) On January 21, 1996, the arbitration panel issued its decision, deciding in the

affirmative, that Plaintiffs have the right to cross Defendant’s tracks to access the

Trenton Steel Warehouse (“TSW”), west of the FN Interlocking. (Id. at 8-9.) Following

the arbitration award and pursuant to the June 23, 1994 agreement letter, Plaintiffs

formed an agreement with Defendant to use Defendant’s tracks for a limited purpose. 

On May 1, 1996, Plaintiffs and Defendant entered into the “Trackage Rights

Agreement Between [Defendant] & [Plaintiffs] to Service Trenton Steel Warehouse”

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(“1996 Agreement”). The 1996 Agreement states, “[Plaintiffs] wish to effectuate the

Arbitration award by reaching agreement on terms to use the certain portions of the

aforesaid line of railway of [Defendant] and [Defendant] is willing to grant such use on

the following terms and conditions . . . .” Section 1 of the 1996 Agreement explicitly

states that Plaintiffs have the right to use certain segments of Defendant’s railroad “for

the sole purpose of serving Trenton Steel Warehouse or its successor.” Section 6 of

the 1996 Agreement delineates restrictions on use. This section states: 

The Trackage Rights herein granted are subject to the following restrictions:

(a) [Plaintiffs] shall use the Trackage for the sole purpose of delivering or

picking up rail cars to and from (including the switching of such cars) [TSW]

located adjacent to “FN.” . . . 

(c) Except as provided in above subparagraph (a) [Plaintiffs] shall not move

any rail cars of any kind, other than those cars moving to or from [TSW] or

perform any local freight or switching service of any kind whatsoever, and

shall not serve any other rail customers along the Trackage.

Additionally, the 1996 Agreement provided that Plaintiffs must pay Defendant a monthly

retainer fee as well as certain rates “for each rail car loaded or empty delivered to or

spotted” at TSW. 

C. Plaintiffs’ Service to Korneffel

On December 1, 2006, Plaintiffs entered into an agreement with Korneffel, a

private corporation engaged in the construction business to establish the terms on

which Plaintiffs would deliver steel to Korneffel. Plaintiffs would deliver the steel by

using Defendant’s tracks to reach a sidetrack owned by Huron Valley Steel Corporation

(“HVS”), near the fence separating the HVS property from Korneffel’s property. (Id. at

11-12.) Defendant was unaware of this agreement. (Id. at 12.)

On May 14, 2008, after Defendant found out that Plaintiffs were delivering

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railcars to Korneffel, Defendant commenced a lockout and physically prevented

Plaintiffs from using its railroad tracks. (Id. at 13.) This resulted in 26 railcars of steel

en route to Korneffel to be held up because Plaintiffs could not deliver them. (Id.) 

Defendant maintains that it has never interfered with Plaintiffs’ use of its tracks to

service TSW, as provided for in the 1996 Agreement, but that Plaintiffs violated that

agreement when they used Defendant’s tracks to provide service to Korneffel.

D. Property

In 1974, Dana Corporation (“Dana”) transferred to the Huron Valley Steel

Corporation (“HVS”) a parcel of land, which consisted of approximately 85.09 acres on

the east side of Fort Street between King Road and Harrison Avenue (“Original HVS

Parcel”). (Condon Report 4.) At the time of this transfer, the original parcel was largely

vacant and contained only the Trenton Steel Warehouse building and some industrial

trackage. (Id.) On January 7, 1987, the Original HVS Parcel was split into 3 separate

parcels of land: (1) 23.29 acres, making up the existing Trenton Steel Warehouse

Parcel; (2) 58.60 acres east and south of the Trenton Steel Warehouse Parcel (“Vacant

Parcel”); and (3) 3.76 acres north and west of the Trenton Steel Warehouse Parcel

(“Corner Parcel”). (Id.) 

On December 11, 1987, the 58.60-acre Vacant Parcel was split into three

additional separate parcels of land: (1) 20.60 acres of Trenton Commerce Park

consisting of 16 separate lots; (2) 36.66 acres south of Trenton Commerce Park

(“Remaining Vacant Parcel”); and (3) 1.34 acres of a Mini Parcel. (Id. at 4-5).

In 2002, HVS sold the southern portion of the Remaining Vacant Parcel, which

consisted of 17.41 acres, to Erie Development LLC (“Erie Parcel”). The Erie Parcel

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spans the southern boundary of the Original HVS Parcel and it touches the southern

border of the Trenton Steel Warehouse Parcel. (Id. at 5.)

Before the parties entered into the Trackage Rights Agreement in May 1996, the

Trenton Steel Warehouse's physical characteristics reflected that it was not intended to

be a part of the Erie Parcel. It was and is gated and fenced and both the Vacant Parcel

and Erie Parcel are and have been separated from the Trenton Steel Warehouse Parcel

by a storm-water detention area, ditches and tall grass; and there are and have been no

roads or foot paths existing between the Trenton Steel Warehouse Parcel and the

Vacant Parcel and/or the Erie Parcel. (Id. at 5.)

David Wilson, while employed for Defendant, went to the Trenton Steel

Warehouse parcel at least twice in the early 1990s, before the dispute arose in 1993. 

(Wilson Dep. 56:16-59:17, Dec. 9, 2009.) Paul Carey, while employed by Plaintiffs,

visited the Trenton Steel Warehouse while the arbitration was going on. (Carey Dep.

29:22-30:6, March 7, 2011.) 

One issue in dispute is whether the Trackage Rights Agreement gives Plaintiffs

the right to access the entire property owned by Huron Valley Steel on Defendant’s

sidetrack, as Plaintiffs contend, or just the specific warehouse facility, as Defendant

maintains.

II. Standard of Review

Courts considering expert testimony examine admissibility within the context of

Federal Rule of Evidence 702. 

If scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education,

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may testify thereto in the form of an opinion or otherwise, if (1) the testimony

is based upon sufficient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has applied the

principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. The United States Supreme Court has established that Rule 702

requires district courts to ensure that expert testimony “rests on a reliable foundation

and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579,

597 (1993). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)

(expanding Daubert’s analysis of expert scientific testimony to cover expert testimony

based on “technical” and “other specialized knowledge”). Rule 702 “imposes a

‘gatekeeping’ duty on district courts [to] exclude unreliable and irrelevant evidence.”

Meemic Ins. Co. v. Hewlett-Packard Co., 717 F. Supp. 2d 752, 761 (E.D. Mich. 2010)

(Edmunds, J.) (citation omitted). 

Expert testimony is relevant only when it will assist the trier of fact in

understanding the evidence or determining a material fact in question. Daubert, 509

U.S. at 592-93. The question is “whether expert testimony improperly addresses

matters within the understanding or common knowledge of the average juror or invades

the province of jury.” United States v. Thomas, 74 F.3d 676, 684 n.6 (6th Cir. 1996),

abrogated on other grounds by Morales v. American Honda Motor Co., Inc., 151 F.3d

500 (6th Cir. 1998). See also Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir.

1994) (“If everyone knows [a particular fact], then we do not need an expert because

the testimony will not assist the trier of fact to understand the evidence or to determine a

fact in issue.”) (internal citation omitted). 

An expert opinion that is based on scientifically valid principles will satisfy Rule

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702, while an expert’s subjective belief or unsupported speculation will not. Smelser v.

Norfolk So. RR Co., 105 F.3d 299, 303 (6th Cir.1997), abrogated on other grounds by

Morales v. American Honda Motor Co., Inc., 151 F.3d 500 (6th Cir. 1998). Courts are

not required to admit opinions or conclusions that are connected to the existing data

only by the ipse dixit of the expert. See General Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997). Courts recognize that:

Social science research, theories and opinions cannot have the exactness

of hard science methodologies, and expert testimony need not be based on

statistical analysis in order to be probative. Peer review, publication,

potential error rate, etc. are not applicable to this kind of testimony, whose

reliability depends heavily on the knowledge and experience of the expert,

rather than the methodology or theory behind it. In such cases, the place to

quibble with an expert's academic training is on cross-examination and goes

to his testimony's weight, not its admissibility.

United States v. Joseph, 542 F.3d 13, 21-22 (2d Cir. 2008) (quotations and citations

omitted)

The party offering expert testimony must prove its admissibility by a

preponderance of the evidence. Daubert, 509 U.S. at 592 n.10.

III. Analysis

Condon, a licensed professional surveyor with over 30 years of experience,

offers two opinions and Plaintiffs seek to exclude them both on separate grounds.

A. Opinion #1: Erie Parcel Not a “Successor” of the Trenton Steel

Warehouse Parcel.

Defendant seeks to have Condon offer an expert opinion that “the Erie parcel

utilized by Korneffel would not be a successor to the Trenton Steel Storage or the

Trenton Steel Warehouse parcel.” (Condon Dep. 132:21-24.) Plaintiffs argue that this

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opinion is based on an unreliable methodology and should be excluded.

Condon’s opinion is that Korneffel would not be a successor to the Trenton Steel

Warehouse parcel because at the time of the Erie Parcel's acquisition, it was part of the

Vacant Parcel, which was legally and geographically separate and distinct from the

Trenton Steel Warehouse Parcel. (Condon Report 5.) 

Condon states, in his deposition, that to reach his conclusion, he “relied on the

deeds and the progression of the conveyances. And the fact that the Korneffel parcel

was part of this vacant parcel . . . at the time of the Trackage Rights Agreement, . . .

and the Trenton Steel Warehouse parcel, was separate and distinct at that time.” 

(Condon Dep. 287:18-24, May 18, 2011.) Condon defines a successor as “following

something else in an orderly sequence and it means a derogation of a split of –

something emanating from the first parcel.” (Id. at 289:8-10.) Condon maintains that

this definition is the “common one that a surveyor uses” (Id. at 289:5-6), and he

obtained this definition from his knowledge about conveyancing that he has

accumulated over many years of practice as a professional surveyor (Id. at 291:13-17). 

Condon goes on to state that a piece of property is only a successor of its most recent

split and is confined solely to the immediate prior parcel. (Id. at 297:25-298:11.) 

Condon’s opinion was further fleshed out in a hypothetical:

Q. Okay. So let's say that Erie Development subdivided the property into

a section A that I'm writing down, a section B that I'm writing down,

and a section C that I'm writing down. Do you follow?

A. Yes.

Q. Okay. Now, A, B, and C, are successors under your definition that you

employ for purposes of your opinion to the Erie parcel, correct?

A. Yes.

Q. Okay. Now, let's say B subdivides, as I'm indicating here, into D. Do

you see that?

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A. Okay.

Q. Okay. Under your definition, D is not a successor to the Erie parcel;

is that correct?

A. It's a successor to B.

Q. Okay. And it is not a successor to the Erie parcel, correct?

A. That's right.

(Condon Dep. 306:8-25.) Condon maintains that his definition of a successor, aside

from being developed over years of expertise and professional surveying is in the

dictionary and a book written by a professional surveyor who is also an attorney. (Id. at

291:18-25, 298:23-299:21.) 

However, Condon does not suggest that this is the definition that was used in the

TRA. Instead, he states:

Q. . . . You were not consulted -- you were not consulted by Grand Trunk

Western or Conrail for purposes of drafting the Trackage Rights

Agreement, correct?

A. Absolutely not.

Q. You have absolutely no idea what the drafters or the signatories to the

Trackage Rights Agreement meant by that language, correct?

A. I do not exactly know.

Q. You have no idea whether those -- those parties employed a definition

in their minds of successor that is entirely different and distinct from

the definition of successor that you just conveyed to me, correct?

A. I don't know what they had in their minds.

Q. And you have -- you have no intention of offering an opinion on what

the parties intended successorship to mean in the Trackage Rights

Agreement, correct?

A. That's correct.

(Id. at 295:3-20.) 

Plaintiffs argue that Condon’s opinion here should be excluded because it has

not been tested, peer reviewed, and he did not consult any published materials. 

Plaintiffs rely heavily on Meemic Ins. Co. v. Hewlett-Packard Co., 717 F. Supp. 2d 752

(E.D. Mich. 2010) (Edmunds, J.). In Meemic, this Court excluded expert testimony as

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inadmissible under Rule 702 because the opinion was based primarily on the expert’s

“real world experiences.” However, that case involved the expert testimony of an

electrical engineer about the cause of a fire. In Kumho Tire, the Supreme Court stated:

We also conclude that a trial court may consider one or more of the specific

factors that Daubert mentioned when doing so will help determine that

testimony’s reliability. But, as the Court stated in Daubert, the test of reliability

is flexible, and Daubert’s list of specific factors neither necessarily nor

exclusively applies to all experts or in every case. Rather, the law grants a

district court the same broad latitude when it decides how to determine

reliability as it enjoys in respect to its ultimate reliability determination. 

Kumho Tire, 526 U.S. at 141-42. Additionally, there are many cases in which peer

review, publication, and potential error rate are not as relevant to the court’s

determination of reliability and the court’s analysis depends more heavily on the

knowledge and experience of the expert, rather than the methodology of theory behind

it.” United States v. Joseph, 542 F.3d 13, 21-22 (2d Cir. 2008).

Plaintiffs do not dispute that Condon has decades of experience as a

professional surveyor. Additionally, Condon is uniquely qualified in this case because

he has performed survey work for HVS and Korneffel and has great familiarity with the

property at issue. (Condon Dep. 128:8-130:3, 14616-247:7.) Condon directly applied

his knowledge and experience in the same way that he would in his profession as a

surveyor to render an opinion in this case. While Plaintiffs may disagree with the

definition of successor that Condon uses, this does not render Condon’s opinion

unreliable.

Plaintiffs’ motion to exclude Condon’s opinion that the property used by Korneffel

is not a successor to the Trenton Steel Warehouse property is DENIED.

B. Opinion #2: Property Divided into Separate Parcels

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The second opinion Condon offers is that “the Erie Development property that

was being used by Korneffel was at the time of the 1996 arbitration award and the 1996

Trackage Rights Agreement part of a separate and distinct parcel, legally and

geographically, from that parcel occupied by the Trenton Steel Warehouse.” (Condon

Dep. 132:14-20.) Plaintiffs argue that this opinion will not assist the trier of fact, is

irrelevant, and constitutes an inadmissible legal conclusion.

1. Legally Distinct

Defendant claims that this testimony is in direct response to Plaintiffs’ argument

that Trenton Steel Warehouse is merely another term for the 85-acre parcel that had, in

the past, belonged to HVS and that the property being used by Korneffel is a successor

to the Trenton Steel Warehouse parcel. In their depositions, both David Wilson and

Paul Carey assert that the “Trenton Steel Warehouse,” as used in the Trackage Rights

Agreement (“TRA”) meant the entire property owned by HVS or even the entire location

that could be reached by the connection of Defendant’s sidetrack to the edge of the

Trenton Steel Warehouse property. However, both Wilson and Carey also admit that

they have no knowledge about what property HVS actually owned at the time the

parties entered into the TRA.

Condon’s testimony that the parcels were separated at the time of the TRA is

directly relevant to whether the Korneffel property would be considered part of the

Trenton Steel Warehouse, to which Plaintiffs had access pursuant to the TRA.

Plaintiffs argue that Condon seeks to offer an opinion of law when he states that

the Erie Parcel and the Trenton Warehouse Parcel were legally separate. “An expert

opinion of law is inadmissible.” Chavez v. Carranza, 559 F.3d 486, 498 (6th Cir. 2009). 

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Plaintiffs also argue that these are merely statements of fact, for which expert

testimony is not needed. However, an expert’s description of the different subdivisions

of the property, the time at which they occurred, and how they relate to one another

would greatly assist the trier of fact.

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However, Condon’s testimony that the parcels are legally distinct is a factual

determination and is allowed.1

 In Kane v. Rippey, the Oregon court explained the

distinction, stating, “What deeds there are in the chain of title, and their form and

manner of execution, are questions of fact; whether or not they vest in the defendants a

good title, is a question of law.” Kane v. Rippey, 22 Or. 299, 302 (Or. 1892).

Plaintiffs argue that this testimony is irrelevant because neither Plaintiffs nor

Defendant knew that the property had been subdivided when they entered into the TRA. 

Even if the parties did not know that the property had been divided, though, testimony

describing “Trenton Steel Warehouse” as “the entire piece of property that Huron Valley

Steel owned” makes this testimony relevant.

Plaintiffs’ motion to exclude Condon’s testimony that the parcels were legally

distinct is DENIED.

2. Geographically Distinct

Condon states that before the parties entered into the Trackage Rights

Agreement in May 1996, the Trenton Steel Warehouse's physical characteristics

reflected that it was not intended to be a part of the Erie Parcel. It was and is gated and

fenced and both the Vacant Parcel and Erie Parcel were separated from the Trenton

Steel Warehouse Parcel by a stormwater detention area, ditches and tall grass; and

there are and have been no roads or foot paths existing between the Trenton Steel

Warehouse Parcel and the Vacant Parcel and/or the Erie Parcel. (Condon Report 5.)

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Plaintiffs argue that these statements are merely factual matters that can be

understood by the jury without assistance and are therefore improper topics for expert

testimony. Parr v. Clark Equip. Co., Inc., 844 F.2d 789 (6th Cir. 1988). Expert

testimony is unnecessary and may be properly excluded if all the primary facts can be

accurately and intelligibly described to the jury and they are as capable as someone

with specialized knowledge of understanding and drawing the correct conclusions. Id. 

Condon states in his deposition that his experience was essential to his

observations about the geographical distinctions between the properties. 

Q. And there is no specialized skill, knowledge, training, or education

required to observe physical characteristics on a property, is there?

A. There sure is when it comes to surveying the boundary law. You have

to know where the boundaries are and you have to be aware of where the

physical characteristics that manifest those boundaries are in relation to the

boundary lines. It isn't I just go out there and I saw this and I saw that. That's

real estate. That's not what surveyors do. . . .

Q. Okay. So the specialized skill of your physical observation is to

observe something and determine where it is in relation to a property

boundary?

A. That's a more accurate description of what we do.

(Condon Dep. 159:6-160:8.) Additionally, Condon states that when he is talking about

geographical distinctions, he is talking about is "the manifestations along these property

lines that are relevant as far as the progression of the development of the parcels." (Id.

at 169:2-20.)

Both David Wilson and Paul Carey testify in their depositions that they went to

the property at or before the time the parties entered into the Arbitration Agreement. 

And both Wilson and Carey testify that “Trenton Steel Warehouse” meant the entire

property owned by Huron Valley Steel. The geographic distinctions between the

properties, then, is directly relevant to the area that the parties may have considered to

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be the property owned by Huron Valley Steel. Although this case does not involve a

boundary-line dispute, expert testimony about how the physical characteristics of the

property relate to the boundary lines is relevant and will assist the trier of fact. Plaintiffs'

motion to exclude this testimony is denied.

IV. Conclusion

For the foregoing reasons, Plaintiffs' motion to exclude Thomas Condon's

testimony is DENIED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: December 1, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of

record on December 1, 2011, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

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