Aliotta v. National R.R. Passenger Corp., 02-1041.

• Citation: 315 F.3d 756
• Decision Date: 03 January 2003
• Docket Number: No. 02-1041.,02-1041.
• Parties: Loretta M. ALIOTTA, Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORP., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 756

315 F.3d 756

Loretta M. ALIOTTA, Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORP., et al., Defendants-Appellees.

No. 02-1041.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2002.

Decided January 3, 2003.

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James N. Vail (argued), Sands & Associates, Chicago, IL, for plaintiff-appellant.

Steven D. Wright, Joseph W. Phebus (argued), Phebus & Winkelmann, Urbana, IL, for defendants-appellees.

Before CUDAHY, DIANE P. WOOD and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge.

Loretta Aliotta, widow and executor of the estate of Joseph Aliotta, appeals an adverse judgment in a wrongful death lawsuit against the National Railroad Passenger Corporation (Amtrak), the Illinois Central Railroad Company (IC) and Gary Gilmer, an Amtrak engineer. A jury verdict was entered against her in the Northern District of Illinois after the case was removed to federal court by Amtrak.¹ Loretta argues that she was unfairly prejudiced by certain rulings on evidence and jury instructions. Finding critical jury instructions to be inadequate statements of Illinois law, we reverse and remand for a new trial.

I.

Joseph Aliotta, a 69 year-old former nurse's aide, lived with his wife Loretta in Watseka, Illinois, a town just south of Kankakee near the Amtrak route between Chicago and Carbondale. Two to three times a year for about fifteen years, Joseph would take the train north from nearby Gilman to Chicago to visit his sisters. Two passenger trains operate northbound between Gilman and Chicago, an evening local train from Carbondale to Chicago and a morning express train which originates in New Orleans. In late 1996, Amtrak changed its schedules, and the express train no longer stopped at Gilman.

On July 30, 1997, Joseph Aliotta called Amtrak to find out when the train to Chicago would be at Gilman station, and was told 7:30. Unfortunately for Joseph, this turned out to be the scheduled stop for the evening train. Doubly unfortunately for Joseph, the morning train would pass through Gilman almost precisely twelve hours earlier, but without stopping.

On the morning of July 31, Loretta drove her husband to the Amtrak station. After standing with him for a while on the platform, she went back to her car and waited for him to board the train. The train came and passed, without stopping, and she found Joseph dead about 180 feet down the tracks from the platform. What exactly happened to Joseph was a matter of dispute at the trial. Witnesses for the plaintiff said that Joseph was standing on an "island platform" along which the train whizzed by, suggesting that Joseph was impacted by the side of the train or was somehow "sucked under." This platform, the plaintiff argued, is dangerously narrow to stand on while trains are passing, and there were no signs warning passengers not to stand there when waiting for trains. Witnesses for the defendants (the engineers on the passing train) said that Joseph was actually crossing the tracks in front of the train, and was hit head-on.

One defense witness, Thomas Prendergast, a Risk Manager for the defendant IC, stated during his deposition that high-speed trains create dangerous vacuums along and near their sides, which can potentially suck bystanders to their deaths. The trial judge refused to allow this testimony into evidence on the ground that it neither met the requirements for expert testimony under Fed.R.Evid. 702 nor was admissible as an admission of a party-opponent under Fed.R.Evid. 801(d)(2). The plaintiff appeals the exclusion of Prendergast's statements on the ground that they qualified as admissions under Fed. R.Evid. 801(d)(2)(D). The plaintiff also appeals the trial judge's exclusion, on the ground that there was a danger of unfair prejudice, of a photograph of the deceased's battered body. Fed.R.Evid. 403. The plaintiff contends that the condition of the body is probative of its position when struck by the train.

Finally, the plaintiff finds fault with several of the jury instructions relating to the appropriate duties of care to be exercised by the parties.

II.

We review a district court's evidentiary rulings for an abuse of discretion. United States v. Colston, 936 F.2d 312, 317 (7th Cir.1991). We review jury instructions with deference, analyzing them as a whole to determine if they accurately state the law and do not confuse the jury. Maltby v. Winston, 36 F.3d 548, 560 (7th Cir.1994). In this analysis, we must first determine whether the instructions in question misstate the law or fail to state it fully. If this requirement is met, we then determine whether the inadequate statements confused or misled the jury causing prejudice to a litigant. Id. The parties agree that we should apply Illinois law to substantive issues. See Hollus v. Amtrak Northeast Corridor, 937 F.Supp. 1110, 1114 (D.N.J.1996) (explaining that the reach of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), extends beyond diversity actions to cover federal question jurisdiction cases in which there is a state law cause of action).

A.

In his deposition, Thomas Prendergast, Risk Manager for the IC, made statements highly damaging to his employer's interests:

Well, the train is so large, it creates a vacuum right next to the train. And that vacuum will pull a person towards the train who is standing too close. You would think it would blow you away from the train, ... [b]ut it's just the opposite. It would actually pull you in closer to the train. If you were standing within a few feet of a passenger train going 79 miles an hour, there's a very good chance that you would be killed. Even though you would be trying to resist that, falling near the train, you would be pulled right in.

...

Certainly, [you] would be pulled in if the train went by that station at 79 miles an hour and [you] were standing on the yellow line or any closer than that yellow line, certainly [you] would be pulled into the train and a good chance that [you] would be injured.

Prendergast Dep. at 46-47, 51. According to the plaintiff's witnesses, Joseph Aliotta was standing on an "island platform" which had tracks running on both sides but was only five feet wide, too narrow even to bother painting yellow warning lines (as such lines would leave a pathetically narrow space in which to stand). This "vacuum theory" (apparently related scientifically to the Bernoulli effect) as presented by Prendergast became the plaintiff's principal theory of Joseph's demise and a key component of her attempt to show as negligent those responsible for building the platform and failing to instruct passengers not to stand on it while waiting for trains.

The defendants made a motion in limine to preclude the plaintiff from presenting Prendergast's testimony at trial, resting their argument on two grounds: Prendergast is not qualified to offer expert scientific testimony under Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Prendergast's employment with the IC is not such as to make his statements admissible as admissions under Fed.R.Evid. 801(d)(2)(D). The district court agreed with the defendants on both grounds and prevented the plaintiff from introducing the deposition testimony. Just as Prendergast's deposition statements were excluded on two distinct grounds, we note that there are two different ways in which Prendergast's testimony could have been admitted. It could be admitted for the truth of the matter asserted in it, requiring the trial court to consider both the reliability of the science, pursuant to Daubert and Rule 702, and any hearsay issues. Or it could be admitted solely to show that Prendergast's employer, the IC, was aware of certain risks, regardless of those risks' scientific basis. In this latter case, with a limiting instruction to disclaim the statements' scientific validity, there is no Daubert or hearsay problem. We will treat these alternatives separately.

1.

Perhaps recognizing the significant hurdle for expert testimony of complying with the Daubert standards, the plaintiff fairly early on gave up trying to qualify Prendergast as an expert witness. Indeed, she never even took the procedural step of disclosing him as an expert, Fed.R.Civ.P. 26(a)(2), and does not appeal the district court's ruling that Prendergast in fact does not qualify. We briefly note that this ruling, excluding the deposition testimony as non-expert scientific testimony (having scant indicia of reliability), was correct. The district court took into consideration, among other things, a defendant-submitted report by an engineer demonstrating that any "vacuum effect" would be so slight that a person could not possibly be "sucked in." At a subsequent hearing, Prendergast also backed away from his emphatic deposition claim, explaining that there was no written documentation he could find, from the IC or elsewhere, of the danger of being sucked into the side of a train. Given the scientific nature of Prendergast's statements, and their evident unreliability, the defendants' motion in limine was properly granted. Daubert, 509 U.S. at 589, 113 S.Ct. 2786 (holding that "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable").

Prendergast's deposition testimony was thus excluded on the ground that it was scientific evidence but unreliable; the exclusion was not an application of the hearsay rule. Nonetheless, the plaintiff argues that the evidence should be admitted as an admission under Fed.R.Evid. 801(d)(2)(D).² But there are complications in this approach. Rule 801(d)(2), on its face, merely defines as non-hearsay certain hearsay-like evidence. The plaintiff directs us to the widely accepted rule that admissions of a party-opponent under Rule 801(d)(2) are accorded generous treatment in determinations of admissibility....