The opinion of the court was delivered by: Judge McVerry
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 ...