IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
May 18, 2007
DENNIS REEDY, PLAINTIFF,
CSX TRANSPORTATION, INC., T/D/B/A CSX, DEFENDANT.
The opinion of the court was delivered by: Judge McVerry
Magistrate Judge Caiazza
OPINION AND ORDER
The parties' cross-motions to exclude the testimony of the others' liability experts ( see Docs. 15 and 17) will be denied, consistent with the analyses below.*fn1
In this diversity action, the Plaintiff Dennis Reedy claims
negligence against the Defendant CSX for injuries sustained on his job
at Keystone Iron & Metal Co. ("Keystone"). See
Compl., attached to Notice of Removal (Doc. 1). Keystone handles
and processes scrap metal and, on October 25, 2005, CSX delivered to
it an empty open-top gondola car ("the Rail Car" or "the Car").
See generally Def.'s Br. (Doc. 18) at 1. After the Car
was parked, and consistent with usual practices, Keystone employees
began moving it to be spotted for loading. Id. at
3. The airbrakes, one of two braking systems on the Car, was
disengaged, and the handbrake was applied to slow and stop the Car.
Id. at 3, 4-5.*fn2 Once
the Car was loaded, it was parked in an area having a downgrade slope
of less than two percent, where it awaited pickup by CSX; again, it
was secured by the handbrake. See id. (citing
The Rail Car began to roll, Mr. Reedy moved the truck he was operating into its path, and the Car collided with the truck, thereby injuring the Plaintiff. See generally Compl. at ¶ 14. According to his pleadings, Mr. Reedy took this action to prevent the Car from rolling into a public railroad crossing, see id. at ¶¶ 12-13, and the Defendant's liability expert does not question his judgment in this regard. Cf. discussions infra .
The parties' theories of causation are straightforward enough. CSX believes that the Plaintiff's co-worker, James Ramsey ("Mr. Ramsey"), misapplied the handbrake. See generally Def.'s Br. (Doc. 18) at 7; Expert Rpt. of Philip J. Daum, P.E. (filed as Ex. 4 to Doc. 15) at 5 ("[t]he rolling of the [C]ar . . . could not have occurred unless the handbrake . . . had not been properly applied").*fn3 The Plaintiff and his expert believe that mechanical failure(s) and/or improper maintenance of the Car's handbrake system proximately caused the accident. See generally Expert Rpt. of Bob R. Tucker (attached as Ex. 5 to Doc. 20) (handbrake slipped and brake shoes/pads "were badly worn," causing Car to roll).
Each party seeks to preclude the testimony of the other's liability expert, and their Motions are now ripe for adjudication.
A. The Defendant's Expert, Mr. Daum
The Plaintiff attacks Mr. Daum's reliance on his inspection of the Rail Car in November 2006, over one year after the accident and following the Car's continued use for hundreds of miles. See generally Pl.'s Br. (Doc. 16) at 4. Counsel relies on the Pennsylvania common law doctrine of "remoteness," which allows the introduction of evidence regarding the condition of a physical object only if "accompanied by proof that it has not changed in the mean[time]." See Ritson v. Don Allen Chevrolet, 336 A.2d 359, 362 (Pa. Super. 1975) (citations omitted).
This doctrine parallels federal law requiring "substantial similarity" between an expert's experiment/testing conditions and those of the accident in suit. See, e.g. , Griffin v. Hickson, 2002 WL 988006, *4 (E.D. Pa. May 9, 2002) (citations omitted).
These inquiries are the "flip side" of one another, so the court need not make a choice-of-law determination. The question is whether Mr. Daum's report and anticipated testimony impermissibly rely on observations made in November 2006 regarding physical conditions of the Car that had substantially changed since the time of the accident.
The first component examined by Mr. Daum was the Car's handbrake housing, which contains gears with teeth. See Daum's Rpt. at 3. The expert relies on CSX maintenance records to conclude that no components in the housing were replaced after the accident. Id. He therefore posits that the gears were in the same (if not, the court observes, a further deteriorated) condition at the time of the inspection than when the accident occurred. Id. Based on his examination, Mr. Daum has opined:
The condition claimed by Mr. Ramsey, where he describes the handbrake skipping a tooth and the chain loosening, could not exist unless there was physical evidence, such as teeth missing from gears. No such physical evidence exists.
The court agrees with the Defendant that, absent evidence of CSX's replacement of the handbrake housing components, Mr. Daum's examination would satisfy the "remoteness" and "substantial similarity" tests annunciated above. Simply put, if none of the subject parts were replaced, their condition could only have deteriorated over the course of the Car's additional use, not improved. The Plaintiff, however, questions the veracity of CSX's evidence:
[T]here is a lack of service documentation for the [C]ar during the time it was in service post-accident. Specifically, it was admitted during the deposition of [the] Defendant's expert that an annual brake test . . . was performed during 2006, but no documentation [has been] provided by [CSX]. . . . [T]o assume that no cogs[ or] gears . . . were replaced during this brake test requires the Court to take a leap of faith [and] assume that the [C]ar was in essentially the same condition in November of 2006 as it was [at the time of the accident].
See Pl.'s Br. in Opp'n (Doc. 20) at 3.*fn4
Defense counsel appears to indicate that the 2006 annual brake test contemplated by the Plaintiff did not occur. See generally Def.'s Opp'n Br. (Doc. 19) at 5. The court cannot be sure, however, given the difference in terminology used by the parties. Cf. id. ("Contrary to [the] Plaintiff's intimations, the record is devoid of proof that a single-car test was performed" between time of accident and Mr. Daum's inspection) (emphasis added).
Also absent is an adequate explanation regarding the evidence upon which CSX relies to show a lack of replacement. The Defendant frequently cites its "AAR-CRB History" on the Car, but fails to provide background information regarding this report; nor does there appear any sworn testimony, on personal knowledge, that any repairs to the Car would, either by necessity or as a result of standard operating procedures, be reflected on the AAR-CRB History.*fn5
These things said, the Plaintiff's argument begs the question of how CSX can "prove a negative," namely, that the gear housing components were not replaced despite the lack of any evidence they were. In the court's view, this could be established by the sworn statement(s) of an appropriate CSX representative stating on personal knowledge that, if any repairs were made to the Rail Car, they would be reflected in the AAR-CRB History or some other existing documentation. If Defense counsel is capable of producing such evidence, CSX's failure to provide documentation regarding a purported "annual brake test" in 2006 would be immaterial.
In an effort to resolve the matter before the June 7th mediation in this case, the Defendant will be ordered to submit such an affidavit (if it can) within eleven (11) days of this Order. Presuming the submission eliminates reasonable doubt regarding whether the Car's handbrake housing components were replaced, Mr. Daum will be permitted to offer opinions and testimony based on his November 2006 inspection. Otherwise, and likely after the mediation, the court will order an evidentiary hearing to make a factual determination regarding whether replacements were made.*fn6
Next is the issue of the Rail Car's brake "shoes" and/or "pads."*fn7 CSX concedes that two of the Car's eight brake shoes were replaced the day after the accident, and that the replaced shoes possessed brake pad material of a thickness at or less than the required industry standard of 3/8". See Def.'s Opp'n Br. at 5, 10. On this evidence alone, any testimony of Mr. Daum relying on the condition of the brake pads, post-accident, fails the "remoteness" and "substantial similarity" tests.
This does not end the inquiry, however, because the expert's report does not appear to rely on the condition of the brake pads at the time of the November 2006 inspection. See Daum's Rpt. at 4-5. Rather, Mr. Daum relies on the fact witness testimony of Mr. Ramsey and others to assert that the thickness of the brake pads still should have prevented the Car from rolling. Id. ("where a brake shoe's surface area has [any] remaining composition material, it is still fully effective in braking a car"). Irrespective of how convincing a jury may find this opinion, the Plaintiff has not shown it impermissible under Daubert or Federal Rule 702, nor does it implicate the doctrines of remoteness or substantial similarity.
As discussed further below, the law is clear that neither party may filter fact evidence and testimony through its expert merely to lend credence to the same. See, e.g. , Nimely v. City of New York, 414 F.3d 381, 398 (2d Cir. 2005) (courts should disallow expert testimony offered to "improperly bolster the account[s] given by the fact witnesses"; party cannot use expert opinion to expound upon "the credibility of trial testimony from crucial fact witnesses") (citations omitted); S.E.C. v. Lipson, 46 F. Supp.2d 758, 763 (N.D. Ill. 1998) (under Daubert , "helpfulness" requirement dictates that "[e]xpert testimony may not be used merely to repeat or summarize what the jury independently has the ability to understand"; "expert testimony must not be allowed to cross over the line of helpfulness and . . . invade the quintessential jury function of determining the credibility of witnesses") (citation omitted). While Mr. Daum skirts the line in this regard*fn8 (and the Plaintiff's expert arguably jumps over it with both feet*fn9 ), this is a separate issue from "remoteness," and the Plaintiff's objection is without merit.
Last is Mr. Daum's opinion that, based on his November 2006 inspection, "the slack adjuster properly lengthened and shortened to maintain proper spacing of the brake shoes adjacent to the wheels." Daum's Rpt. at 4. Plaintiff's counsel represents:
As stated by both Messrs. Daum and Tucker, brake shoe thickness directly [a]ffects piston travel length, and also is critical in determining whether the slack adjuster is functioning properly . . .
See Pl.'s Reply Br. at 3 (citing record evidence, emphasis added). Having reviewed the evidence cited by counsel, the court possesses insufficient expertise to determine whether a slack adjuster's functioning indeed is affected by brake pad thickness. Assuming it is, Mr. Daum's post-accident examination of the slack adjuster would be too "remote" given CSX's admitted replacement of two brake shoes the day after the accident. In light of the court's inability to determine whether the November 2006 testing of the slack adjuster reflected condition(s) substantially similar to ones existing at the time of the accident, an evidentiary hearing is necessary to determine the admissibility of Mr. Daum's testimony in this regard.*fn10
As for the remaining portions of Mr. Daum's report, the Plaintiff has not shown how they implicate the remoteness and/or substantial similarity standards. Otherwise, counsel has failed to level a meaningful Daubert challenge, and there is no basis for rejecting the remainder of the report.
B. The Plaintiff's Expert, Mr. Tucker
In seeking to preclude this expert's testimony, the Defendant argues that he has "failed to employ any scientific or technical method or procedure" in support of his opinions.
Def.'s Br. at 9. Counsel also presents two somewhat related themes: (1) Mr. Tucker has not supported his causation theory with "any testing or hands-on operation of the railcar's handbrake" components; and (2) the expert has failed to account for an obvious alternative explanation for the accident, namely Mr. Ramsey's failure to properly set the handbrake.
See generally Def.'s Br. at 6-7.
The problem with the Defendant's position, however, is that it demands too much of Mr. Tucker's opinions. The expert is not required to demonstrate, for example, that Mr. Ramsey was truthful and unmistaken in testifying that the handbrake "slipped" when he attempted to set it. Cf. generally Ramsey's Rpt. at 3. To the contrary, Federal Rule of Evidence 703 permits an expert to "rely on facts from firsthand knowledge or observation, information [to be] learned at the hearing or trial, and [even] facts learned out of court." Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002) (emphasis added). Once the expert has identified a "factual foundation in the record," which Mr. Ramsey's sworn statements provide here, "the burden of exploring [the expert's] facts and assumptions" falls on "opposing counsel [through] cross-examination." Id. (citations omitted).
In essence, both experts in this case are attempting to do the
same thing. Based on facts in the record (and, in Mr. Daum's case, his
November 2006 inspection to some degree), they are offering
specialized knowledge and experience to state opinions regarding the
most likely cause of the accident. Under Rule 703, Mr. Tucker's
decision to decline inspection of the car, over one year after the
accident occurred, does not make his opinions any less admissible than
Mr. Daum's. See discussion supra
(expert may rely on "firsthand . . . observation" or
"information learned at the hearing or trial"). Nor does the rule
requiring experts to exclude obvious alternative explanations vitiate
Mr. Tucker's permissible use of facts in the record to support one of
the only two possible causes identified by the experts (
i.e. , mechanical failure versus human error). And while
Mr. Daum's later examination of the handbrake housing components, if
admissible, certainly would undermine Mr. Ramsey's testimony that the
handbrake "slipped," this goes to the fact witness' credibility and is
for the jury to weigh; not the court in its "gatekeeper" role under
These conclusions extend to the Defendant's arguments regarding the Car's worn brake pads and the excessive brake piston travel. Although counsel questions Mr. Ramsey's testimony regarding brake pad thickness, see Def.'s Br. at 11, CSX must concede that at least two of the shoes were worn to 3/8" inches or less, in excess of industry standard. See discussion supra ; see also Dep. Tr. of J. Ramsey at 50 (inspection just after accident revealed that one "could probably slide a paper envelope" between two pads and their wheels, and two other pads "were worn down real bad [sic]"). In addition, the Plaintiff's expert has opined based on his specialized knowledge and experience that worn brake pads cause the cylinder piston travel to extend beyond safe limits. See, e.g. , Tucker's Rpt. at 4. There exists some factual basis in the record to support this opinion, and Rule 703 dictates that the Defendant's challenges are properly addressed through cross-examination rather than a finding of non-admissibility. See discussion supra .
Finally are CSX's general arguments regarding the alleged lack of
scientific procedure and/or methodology to support Mr. Tucker's
opinions. See generally Def.'s Br. at 8. While the
Defendant's brief makes reference to the Supreme Court's decision in
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), see
id. at 7, counsel's arguments do not account for the
decision's recognition that different considerations arise within the
context of non-scientific experts. Through its reading of
Kumho , the Third Circuit Court has recognized that
" Daubert 's list of specific factors neither
necessarily nor exclusively applies to all experts . . . in every
case." U.S. v. Davis, 397 F.3d 173, 178 (3d Cir. 2005). Indeed, the
Daubert factors are "often . . . of little use in
evaluating non-scientific expert testimony," see id.
, and where appropriate, the "relevant reliability concerns may
focus upon personal knowledge or experience." U.S. v. Ford, 481 F.3d
215, 219 n.5 (3d Cir. 2007) (quoting Kumho ).
In this case, both experts rely on their impressive personal
knowledge and experience in the railroad industry. See
Pl.'s Opp'n Br. at 5 (Mr. Tucker has worked on railroad since he
was 17, and has 30 years of investigation experience regarding
accidents involving train movement); Appendix B to Daum's Rpt.
(expert's curriculum vitae, revealing 24 years of mechanical
engineering experience in, among other things, railcar design
including brake systems). The court has little difficulty concluding
that these experts' specialized knowledge and experience lend
reliability to their opinions, at least to the extent contemplated
above. See, e.g. , Betterbox Commc'ns Ltd. v. BB
Techs., Inc., 300 F.3d 325, 328-29 (3d Cir. 2002) (district court did
not err in allowing expert testimony based on his "personal knowledge
[and] experience" rather than "a methodology that satisfie[d] the
Daubert factors"; expert's "practical experience
sufficed under [the] liberal test" of whether he "possess[ed] skill or
knowledge greater than the average layman") (citations omitted, some
internal quotations in original). Which expert's permissible opinions
are more persuasive is for the jury to decide. See,
e.g. , Fillebrown v. Steelcase, Inc., 2003 WL 1191162, *3 (3d
Cir. Feb. 24, 2003) (" Daubert does not set up a
test of which opinion has the best foundation," and "[i]t [is]
appropriate for the jury to determine which of the experts' opinions
[is] the most persuasive") (citing and quoting binding published Third
For all of the reasons stated above, the court enters the following:
The parties' cross-Motions to exclude the testimony of liability experts ( Docs. 15 & 17 ) are DENIED , consistent with the analyses in the above Opinion. In addition, the Defendant may submit, within eleven (11) days of the date of this Order, the affidavit of an appropriate CSX representative stating on personal knowledge that, if repairs were made to the Rail Car's handbrake housing, they would be reflected in the AAR-CRB History or some other existing documentation.
THESE THINGS ARE SO ORDERED.