Barbero v. CSX Transp.
| Docket Number | Index No.: 905691-21 |
| Decision Date | 06 February 2023 |
| Citation | 185 N.Y.S.3d 895 |
| Parties | Kenneth BARBERO, Plaintiff, v. CSX TRANSPORTATION, Defendant. |
| Court | New York Supreme Court |
Hach & Rose, LLP, Mark G. Sokoloff, Esq., Attorneys for Plaintiff, 112 Madison Avenue, 10th Floor, New York, New York 10016
Burns White LLC, David Chludzinski, Esq., Attorneys for Defendant, 48 26th Street, Burns White Center, Pittsburgh, Pennsylvania 15222
Plaintiff, a machinist employed by defendant CSX Transportation, a railroad company, commenced this action pursuant to the Federal Employers’ Liability Act ( 45 USC § 51 et seq. [hereinafter FELA]) to recover for injuries alleged to have been caused by an unsafe work environment. He moves to preclude the testimony of defendant's expert Greg G. Weames, a certified professional ergonomist (motion No. 3). Defendant opposes and moves separately to preclude the report and testimony of plaintiff's expert William Marletta, Ph.D., a certified safety consultant (motion No. 4). Plaintiff opposes. For the reasons that follow, plaintiff's motion (No. 3) is granted in part and denied in part, and defendant's motion (No. 4) is granted in part and denied in part.
Plaintiff claims that he was injured while working at defendant's Selkirk Diesel Shop in Drop Pit 2, a large rectangular locomotive maintenance area sunk below the level of the surrounding shop platform. For the most part, the perimeter of Drop Pit 2 is a yellow-painted 14¾-inch-high curb (hereinafter referred to as the ledge).1 The ledge is unguarded by a handrail or any other barrier. Defendant's employees could step down into Drop Pit 2 directly from the top of the ledge and could also step up from the pit floor directly to the top of the ledge, or they could use the two stairways at the east and west ends of the pit.
On July 20, 2018, while repairing Engine Unit 8246 in Drop Pit 2, plaintiff stepped out of the pit directly onto the ledge to retrieve a tool. Tool in hand, he intended to return to the pit the same way. Specifically, plaintiff alleges that, using his right foot, he stepped off the ledge onto the floor of Drop Pit 2. In plaintiff's telling, his right foot slipped on grease or moisture on the floor of the pit, that foot turned, and he fell and heard a pop from his right ankle. Plaintiff immediately informed his foreman that he may have sprained his ankle, but avers that the foreman advised him to return to work and discouraged him from formally reporting his injury. As a result, plaintiff continued to work for several days on his injured ankle. After eventually seeking treatment and being diagnosed with a repetitive stress impact fracture, plaintiff underwent fusion surgery on his right ankle. This FELA action ensued in July 2021.
FELA provides that a railroad engaged in interstate commerce "shall be liable in damages to any person suffering injury while he [or she] is employed by such carrier in such commerce ... for such injury ... 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, boats, wharves, or other equipment" ( 45 USC § 51 ). "In FELA actions, the plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation" ( Tufariello v. Long Is. R.R. Co. , 458 F.3d 80, 87 [2d Cir. 2006] [citations omitted]; accord Ojeda v. Metropolitan Transp. Auth. , 41 F.4th 56, 63 [2d Cir. 2022] ). "A railroad may be liable under FELA for failure to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform and protect its employees" ( Syverson v. Consolidated Rail Corp. , 19 F.3d 824, 826 [2d Cir. 1994] [internal quotation marks and citation omitted]; see Williams v. Long Is. R.R. Co. , 196 F.3d 402, 406 [2d Cir. 1999] ). Reasonable care is an issue reserved for the factfinder to be "determined in light of whether or not a particular danger was foreseeable" ( Syverson v. Consolidated Rail Corp. , 19 F.3d at 826, citing Gallick v. Baltimore & Ohio R. Co. , 372 U.S. 108, 117, 83 S.Ct. 659, 9 L.Ed.2d 618 [1963] ; see Gallose v. Long Is. R.R. Co. , 878 F.2d 80, 84 [2d Cir. 1989] ).
Defendant joined issue in August 2021 and proceeded with discovery. The parties commissioned experts and exchanged expert disclosures (see CPLR 3101 [d] ), which are the subject of their motions now before the Court. Plaintiff seeks to preclude defendant's expert Weames from testifying on the ground that it is cumulative of testimony proffered by defendant's two other experts. Alternatively, plaintiff requests a Frye hearing to determine the admissibility and scope of Weames’ testimony. And defendant, in its motion, contends that plaintiff's expert Marletta's testimony must be precluded because the regulations, codes, and standards upon which he relies are displaced or preempted by regulations and policies promulgated by the Federal Railroad Administration (FRA). Barring that, defendant maintains that Marletta's conclusions are unreliable, speculative, or inappropriate subjects of expert testimony.
The admissibility of expert evidence is generally a matter left to the sound discretion of the trial court (see Dufel v. Green , 84 N.Y.2d 795, 797-798, 622 N.Y.S.2d 900, 647 N.E.2d 105 [1995] )). "Generally, an expert should be permitted to offer an opinion on an issue which involves professional or scientific knowledge or skill not within the range of ordinary training or intelligence" ( Dufel v. Green , 84 N.Y.2d 795, 797-798, 622 N.Y.S.2d 900, 647 N.E.2d 105 [1995] [internal quotation marks and citations omitted]; see People v. Rivers , 18 N.Y.3d 222, 228, 936 N.Y.S.2d 650, 960 N.E.2d 419 [2011] ; De Long v. County of Erie , 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717 [1983] ). Likewise, preclusion of evidence as cumulative is a matter left to the sound discretion of the trial court ( Rucigay v. Wyckoff Heights Medical Center , 194 A.D.3d 865, 867, 149 N.Y.S.3d 148 [2d Dept. 2021] ).
In exercising its discretion here, the Court recognizes that "[a] plaintiff's burden in making a showing of causation and negligence is lighter under FELA than it would be at common law" ( Tufariello v. Long Is. R.R. Co. , 458 F.3d at 87 ). Indeed, "[u]nder FELA, a jury is entitled to find negligence if a party's actions ‘played any part, even the slightest, in producing the injury’ " ( Hotaling v. CSX Transp. , 5 A.D.3d 964, 967-968, 773 N.Y.S.2d 755 [3d Dept. 2004], quoting Rogers v. Missouri Pacific R. Co. , 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 [1957] ). Concomitantly, " ‘an employer may be held liable under FELA for risks that would otherwise be too remote to support liability at common law’ " ( id. , quoting Ulfik v. Metro—North Commuter R.R. , 77 F.3d 54, 58 [2d Cir. 1996] ).
Testimony by defendant's expert Weames should be limited to his report's rationale and conclusion regarding the foreseeable risk of injury based on his kinesiological and ergonomic analyses.
Defendant's expert Weames’ testimony should be precluded in part to the extent that it is cumulative of defendant's two other experts. But there is no basis to preclude Weames’ opinion regarding the foreseeable risk of injury based on kinesiological and ergonomic analyses.
Defendant has disclosed two other expert witnesses. The first is John J. Cambareri, an orthopedist, who opines in his independent medical examination (IME) report that, from a medical standpoint, plaintiff's injuries are "all consistent with a Charcot joint or neuropathic arthropathy," which is a "well-known orthopedic condition that occurs often in diabetics," such as plaintiff. If plaintiff's "fracture [was] to occur from trauma," Cambareri continues, "it would take significantly more trauma than [plaintiff] described." Cambareri notes that plaintiff "has some significant comorbidities" and concludes that plaintiff's "alleged injuries were not cause or contributed to by his railroad work." Defendant also proffers opinion evidence from Frank Fortino, "an expert in the area of building construction, maintenance, and safety codes and standards." Fortino is the owner of Metropolis Consulting Group, Inc., with over 30 years’ experience in the construction field. Defendant anticipates that Fortino's testimony "will encompass all aspects of applicable standards and codes and will rebut any opinions that may be offered by any of [p]laintiff's expert witnesses that specific standards and codes apply to specific areas/or were not adhered to by [defendant]."
Weames, on the other hand, is a certified ergonomist and holds a Master's degree in kinanthropology and a Bachelor's degree in kinesiology. His curriculum vitae touts numerous memberships in professional associations, conference papers, and presentations in the field of ergonomics. He authored a 31-page report analyzing plaintiff's accident, drawing on the pleadings, deposition testimony, other materials in the case file, and data collected during his January 2022 site visit. The report contains Weames’ analysis of those sources and data using methods sanctioned by the National Institute for Occupational Safety and Health, ultimately concluding "to a reasonable degree of scientific certainty [that] the act of stepping down from the shop floor to the drop pit floor ... was/is reasonably safe from an acute fracture of the ankle." In some respects, Weames’ report and testimony would substantially overlap with that of Cambareri and Fortino. For example, Weames reports on the prevalence of risk factors in people who suffer ankle fractures—for example, age, obesity, vitamin D deficiency, and diabetes. He also comments on the apparent strangeness of "conduct[ing] normal weight-bearing activities on an acute isolated...
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