Hewitt v. Metro–N. Commuter R.R.

• Decision Date: 24 March 2017
• Docket Number: 14–cv–8052 (AJN)
• Parties: Donovan G. HEWITT, Plaintiff, v. METRO–NORTH COMMUTER RAILROAD, Defendant.
• Court: U.S. District Court — Southern District of New York

244 F.Supp.3d 379

Donovan G. HEWITT, Plaintiff,

v.METRO–NORTH COMMUTER RAILROAD, Defendant.

14–cv–8052 (AJN)

United States District Court, S.D. New York.

Signed March 24, 2017

Ira Mark Maurer, The Maurer Law Firm PLLC, Fishkill, NY, for Plaintiff.

James M. Woolsey, III, Jonathan B. Adler, Michael Jared Zisser, Landman Corsi Ballaine & Ford PC, New York, NY, for Defendant.

MEMORANDUM & ORDER

ALISON J. NATHAN, District Judge

In this action brought pursuant to the Federal Employers' Liability Act ("FELA"), Defendant Metro–North Commuter Railroad ("Metro–North") has filed a Daubert motion and a motion for partial summary judgment. The crux of Metro–North's motion is that much of the testimony of Plaintiff's ergonomics expert, Dr. Andres, should be excluded as unreliable. As explained below, the Court concludes that Dr. Andres' expert opinion is admissible. The Court therefore denies Metro–North's motion to preclude Dr. Andres' testimony. Because Metro–North's partial summary judgment motion and motion to exclude another expert's testimony are premised on the exclusion of Dr. Andres' testimony, the Court also denies those two motions.

I. Background

Plaintiff Donovan Hewitt has brought this FELA action against his former employer, Metro–North. Metro–North is a railroad company located in New York. Amend. Compl. ¶ 4 (Dkt No. 56); Plaintiff's Rule 56.1 Statement ¶ 2 (Dkt No. 91). Hewitt worked for Metro–North from 2004 to 2014. Plaintiff's Rule 56.1 Statement ¶¶ 6, 88. From 2007 to 2014, Hewitt worked as an "E–Cleaner" or "coach cleaner" at Metro–North's Highbridge facility. Plaintiff's Rule 56.1 Statement ¶¶ 6, 88. This job was allegedly very physically demanding, as it entailed cleaning "every surface" in a railroad car, including the ceiling, walls, windows, floor, bathrooms, and seats. Plaintiff's Rule 56.1 Statement ¶ 23. This work required Hewitt to "use[ ] his arms constantly," including by reaching to clean high spaces, wringing out a mop, lifting heavy items, and removing or "popping" seat cushions. Plaintiff's Rule 56.1 Statement ¶¶ 7, 198, 214. According to Hewitt, the job was especially demanding because Metro–North frequently understaffed the coach cleaning division. Plaintiff's Rule 56.1 Statement ¶ 38; Def. Ex. B at 14–15 (Dkt No. 70–2).

Plaintiff alleges that, as a result of his work as a coach cleaner for Metro–North, he suffered certain injuries to his shoulders and arms. Plaintiff's Rule 56.1 Statement ¶¶ 1, 58. Multiple MRIs revealed that Hewitt suffered from, among other things, a torn rotator cuff, tendinosis

in both his shoulder and elbow, shoulder impingement syndrome, and shoulder joint adhesions. Plaintiff's Rule 56.1 Statement ¶¶ 199–202, 209, 238. Over the span of approximately one year, Hewitt underwent three surgeries to attempt to fix these problems. Plaintiff's Rule 56.1 Statement ¶ 201, 204, 210. He also attended physical therapy. Plaintiff's Rule 56.1 Statement ¶ 211.

On October 6, 2014, Hewitt filed the present lawsuit. Dkt No. 1. His lawsuit alleges that the injuries to his shoulder and elbow were caused by Metro–North's failure to provide necessary tools, supervision, training, and manpower during his time as a coach cleaner. Amend. Compl. ¶ 16. The core of Hewitt's complaint is that Metro–North failed to "use reasonable care to provide [him] with a reasonably safe place in which to work" in violation of FELA. Amend. Compl. ¶¶ 2, 13, 16.

To support his claims, Hewitt retained the services of Dr. Robert Andres, a bioengineer and ergonomist. Plaintiff's Rule 56.1 Statement ¶¶ 118–19; Opp. at 6 (Dkt No. 90). "Ergonomics is the science of fitting workplace conditions and job demands to the capabilities of the working population." Ahmed v. Keystone Shipping Co. , No. 10-14642, 2012 WL 5300094, at *5 (E.D. Mich. Oct. 25, 2012). This science focuses on ensuring a proper "fit" between a job and worker in order to increase productivity and avoid injuries. Id. ; Def. Ex. B at 1.

Dr. Andres was retained for the purposes of assessing Hewitt's exposure to ergonomic risk factors while working as a cleaner for Metro–North. Def. Ex. B at 2. Ergonomic risk factors are "work-related factors that may pose a risk of musculoskeletal disorders

." Ahmed , 2012 WL 5300094, at *5. "Common examples" include "repetitive, forceful, or prolonged exertions of the hands; frequent or heavy lifting, pushing, pulling, or carrying of heavy objects; and prolonged awkward postures." Id. Dr. Andres reviewed Hewitt's various job tasks, including lifting seat cushions, scrubbing overhead luggage racks, and cleaning various other parts of a Metro–North railroad car. Def. Ex. 13–19, 32–33. He concluded that these tasks exposed Hewitt to multiple ergonomic risk factors, including "awkward upper extremity postures" and repetitive hand gestures. Id. at 18. Dr. Andres also concluded that the amount of force that it required a cleaner such as Hewitt to remove a seat cushion in a Metro–North car exceeded recommended limits. Id. at 31–32.

In addition to analyzing Hewitt's exposure to ergonomic risk factors, Dr. Andres also reviewed Metro–North's approach to mitigating its employees' exposure to such factors. Id. at 2, 40–41. According to Dr. Andres, Metro–North failed to take a number of actions that could have limited Hewitt's exposure to ergonomic risk factors, including failing to perform an ergonomic screening or job analysis, failing to provide adequate tools to remove seat cushions, and failing to provide ergonomic training to employees. Id. at 40–41. Based on these observations, Dr. Andres concluded that it was his "opinion to a reasonable degree of ergonomic certainty that [Metro–North] failed to provide Mr. Hewitt with a reasonable safety and health program that dealt with ergonomic issues that met standard industry work practices." Id. at 41. In reaching his conclusions, Dr. Andres relied upon various materials, including Hewitt's deposition transcripts, an interview with Hewitt, the deposition transcripts of other Metro–North employees, Hewitt's medical records, Metro–North's car cleaning manual, Metro–North's "Medical Guidelines for Coach Cleaner," and various scientific articles and literature. Id. at 3–5. Dr. Andres also conducted a site inspection of Metro–North's Highbridge facility on October 5, 2015. Id. ; see Dkt No. 39. Metro–North hired its own ergonomics expert, Dennis Mitchell, who issued a report criticizing Dr. Andres' findings and methodology. Def. Ex. P (Dkt No. 70–17).

Hewitt also asked his treating orthopedic surgeon, Dr. Victor Sasson, to testify as an expert. Dr. Sasson started treating Hewitt in 2014 for his various shoulder and elbow injuries, and he was the doctor that performed the surgeries on Hewitt's arm. Plaintiff's Rule 56.1 Statement ¶¶ 7, 198–211. Dr. Sasson was asked to provide a summary of his evaluation and treatment of Hewitt and to opine on the cause of Hewitt's injuries. Plaintiff's Rule 56.1 Statement ¶ 197; Def. Ex. N at 1 (Dkt No. 70–15). Accordingly, Dr. Sasson issued a report that outlines Hewitt's medical history. Def. Ex. N at 1–3. Dr. Sasson also conducted a differential diagnosis—a process through which a physician determines what has caused a patient's symptoms by "consider[ing] all relevant potential causes of the symptoms and then eliminat[ing] alternative causes based on a physical examination, clinical tests, and a thorough case history," see Hardyman v. Norfolk & W. Ry. Co. , 243 F.3d 255, 260 (6th Cir. 2001) —in order to determine the cause of Hewitt's injuries. Dr. Sasson ultimately concluded that "Hewitt's job as a Metro North Railroad coach cleaner ... was a significant contributing cause (not the sole cause) of the injuries/conditions and symptoms [Dr. Sasson] ha[d] treated him for and operated upon." Def. Ex. N at 14. To reach this conclusion, Dr. Sasson relied on, inter alia , Hewitt's medical history, Metro–North's "Medical Guidelines for Coach Cleaner," Hewitt's deposition transcripts, and Dr. Andres' preliminary report. Id. at 3–4.

On March 30, 2016, Metro–North filed a motion for partial summary judgment. Dkt No. 69. The primary argument in this motion is that, with the exception of his opinions related to seat removal, Dr. Andres' proposed expert testimony is inadmissible under Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Mot. at 11–22 (Dkt No. 72). The company also seeks to exclude Dr. Sasson's testimony on the ground that he relied upon Dr. Andres' purportedly inadmissible opinion. Mot. at 22–23. Finally, Metro–North argues that, without the testimony of Dr. Andres and Dr. Sasson, Hewitt does not have sufficient evidence to prove his claims, with the exception of his allegation that his "injury was allegedly cause[d] by car seat removal." Mot. at 24. The company therefore asks the Court to "dismiss [ ] all claims in plaintiff's Amended Complaint other than those regarding alleged injuries sustained by plaintiff due to removal of seat cushions on Metro–North trains." Mot. at 25.

II. Legal Standards

A. Federal Employers' Liability Act

Hewitt brought suit pursuant to the Federal Employers' Liability Act ("FELA"). FELA is " ‘a broad remedial statute’ whose objective is ‘to provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer.’ " Green v. Long Island R.R. Co. , 280 F.3d 224, 229 (2d Cir. 2002) (quoting Atchison, Topeka & Santa Fe Ry. Co. v. Buell , 480 U.S. 557, 561–62, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987) ). The statute states, in relevant part, that:

Every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works,

...