Buttaccio v. Am. Premier Underwriters, Inc.

• Decision Date: 16 November 2017
• Docket Number: No. 1602 EDA 2016,1602 EDA 2016
• Citation: 175 A.3d 311
• Parties: Mike BUTTACCIO v. AMERICAN PREMIER UNDERWRITERS, INC., Formerly Known as Penn Central Corporation, Individually and/or as Successor–In–Interest–Or–Liability to Penn Central Transportation Company, the Pennsylvania New York Central Railroad Company, and/or the Pennsylvania Railroad, Consolidated Rail Corporation and CSX Transportation, Inc., Appellants
• Court: Pennsylvania Superior Court

175 A.3d 311

Mike BUTTACCIO

v.AMERICAN PREMIER UNDERWRITERS, INC., Formerly Known as Penn Central Corporation, Individually and/or as Successor–In–Interest–Or–Liability to Penn Central Transportation Company, the Pennsylvania New York Central Railroad Company, and/or the Pennsylvania Railroad, Consolidated Rail Corporation and CSX Transportation, Inc., Appellants

No. 1602 EDA 2016

Superior Court of Pennsylvania.

Argued January 25, 2017

Filed November 16, 2017

Robert M. Palumbos, Philadelphia, for appellant.

David L. Lockard, Philadelphia, for appellee.

BEFORE: OTT, RANSOM, and FITZGERALD,^* JJ.

OPINION BY FITZGERALD, J.:

Appellants, American Premier Underwriters, Inc. ("Penn Central"), Consolidated Rail Corporation ("Conrail"), and CSX Transportation, Inc. ("CSX") (collectively referred to as "Appellants" or "the railroads"), appeal from a judgment of $597,000.00 entered in favor of Appellee, Mike Buttaccio, in this personal injury action under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51 – 60. Appellants argue that the trial court abused its discretion by denying their motion to exclude the testimony of Appellee's liability expert on the ground that his methodology is not generally accepted in the field of ergonomics. Second, Appellants request a new trial on the grounds that counsel for Appellee repeatedly violated the trial court's order precluding evidence and argument about the manpower that Appellants provided, and counsel made a highly prejudicial comment that " ‘two employees of CSX were killed’ " in an unrelated accident.

Appellants' Brief at 42. Finally, Appellants contend that the trial court erred by permitting Appellee's liability expert to introduce evidence that Appellants "received ‘thousands of claims [from other employees] for carpal tunnel syndrome and lower extremity disorders and upper extremity disorders as well.’ " Id. at 43.

We hold that the trial court acted within its discretion in determining that the methodology of Appellee's liability expert was generally accepted in the field of ergonomics. We conclude, however, that Appellants are entitled to a new trial because of Appellee's counsel's violations of the preclusion order and prejudicial remark concerning the death of two CSX employees. With regard to Appellants' final argument, we direct the trial court to hold an evidentiary hearing on remand as to the admissibility of Appellee's "other claims" evidence.

Appellee brought this action against his railroad employers to recover for his occupational injuries and economic damages. Appellee began his employment in 1973 as a carman for Penn Central, and he later worked as a carman and car inspector at the railyard in Rochester, New York. R.R. 615a.¹ In these capacities, he repaired freight cars, changed brake valves and wheel sets, and generally kept the cars in working order. Id. at 599–601a. This work required him frequently to kneel or squat next to or under rail cars and climb onto, up, down, over and under rail cars while lifting and using heavy vibrating tools. Id. at 988a–89a, 1000a, 1004a–05a, 1011a–12a, 1016a–19a, 1042a–43a, 1049a–50a, 1061a–65a. Appellee claimed that his many years of heavy work, combined with frequent awkward postures, caused gradual development of career-ending shoulder, knee and carpal tunnel injuries. N.T., 11/13/15, at 41–60 (Appellee's closing argument). Dr. Andres, Appellee's liability expert, testified that Appellee's job duties exposed his shoulders and knees to "high-force exertions," and that Appellants "could have minimized the effects of [Appellee's] exposure to these risk factors" but failed to do so. Id. at 373a–74a, 1360a–62a.

The jury found for Appellee and awarded him $600,000, which the trial court molded to $597,000 to reflect the jury's finding that Appellee was .5% comparatively negligent. The trial court denied Appellants' post-trial motions and entered judgment in favor of Appellee. Appellants filed a timely appeal, and Appellants and the trial court complied with Pa.R.A.P. 1925.

Appellants raise the following issues in this appeal:

1. Should the trial court have excluded [Appellee's] liability expert where [Appellee] failed to show that the expert's methodology is generally accepted in the field of ergonomics or reliable?

2. Are [Appellants] entitled to a new trial where [Appellee's] counsel repeatedly and intentionally violated the trial court's ruling on a motion in limine and made an inflammatory and highly prejudicial comment about the unrelated details of two railroad employees?

3. Did the trial court commit reversible error by admitting into evidence testimony about "thousands of claims" against [Appellants] by other employees, despite [Appellee's] failure to show that these claims were substantially similar to the facts in this case?

Appellants' Brief at 3.

In their first argument, Appellants object to the trial court's order denying their motion to exclude Dr. Andres' expert testimony. According to Appellants, Dr. Andres' methodology is not generally accepted in the field of ergonomics, and he failed to objectively measure the actual forces to which Appellee was exposed on the job. More specifically, Appellants argue that Dr. Andres failed to provide "objective ergonomic data that identifies [Appellee's] work tasks as being repetitive or exposing [Appellee] to awkward postures or forceful tasks" and failed to articulate steps that the railroads should have taken to minimize risk factors. Id. at 20, 26. We disagree.

"[T]he admission of expert scientific testimony is an evidentiary matter for the trial court's discretion and should not be disturbed on appeal unless the trial court abuses its discretion." See Grady v. Frito–Lay, Inc. , 576 Pa. 546, 839 A.2d 1038, 1046 (2003).

The Rules of Evidence provide:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;

(b) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

(c) the expert's methodology is generally accepted in the relevant field.

Pa.R.E. 702. The proponent of expert scientific evidence bears the burden of establishing all of the elements for its admission under Pa.R.E. 702, which includes showing that the rule in Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), is satisfied. See Grady , 839 A.2d at 1045. Frye , which is now embodied in Pa.R.E. 702(c), instructs that the court should not admit scientific evidence during trial unless the underlying methodology has gained general acceptance in the scientific community. See Commonwealth v. Topa , 471 Pa. 223, 369 A.2d 1277, 1281–82 (1977). " Frye does not apply to every time science enters the courtroom ... Frye does apply, however, where an expert witness employs a novel scientific methodology in reaching his or her conclusion." Folger ex rel. Folger v. Dugan , 876 A.2d 1049, 1058 (Pa. Super. 2005) (en banc ) (citations omitted). One method to assess a Frye motion is to conduct a Frye hearing, although a hearing is not mandatory. See id. ("[t]he trial court did not err in declining to conduct a Frye hearing").

Dr. Andres, a bioengineer and ergonomist² for thirty-five years, has published hundreds of publications, abstracts, technical reports and trade notes on ergonomics in peer-reviewed publications and has received multiple grants to perform ergonomic research from organizations such as NASA, OSHA and the National Institute of Occupational Safety and Health. R.R. 382a–87a, 392a–93a. He has performed twenty-four site inspections of carmen's workplaces, ten of which were CSX workplaces. Id. at 281a, 382a–87a, 1304a. Dr. Andres interviewed Appellee, reviewed his medical records, and read his deposition detailing his work as a carman. Id. at 281a–82a, 1328a–29a, 1360a. Additionally, Dr. Andres reviewed the analysis of numerous railroad industry consultants concerning the frequency of carmen's tasks, the forces created by performing these tasks, the duration of these tasks and the risk factors for musculoskeletal disorders created by these tasks. Id. at 304a–08a. Based on this data, Dr. Andres performed a Three Dimensional Static Strength Prediction Program ("3DSSPP") biomechanical modeling of some of Appellee's tasks, Id. at 348a–55a, and concluded that these tasks violated the "strength criterion" for Appellee's shoulder and knee. Id. at 1354a–55a.

The trial court concluded that no need existed to hold a Frye hearing, because Dr. Andres' opinion

was not based on a novel methodology. ... Dr. Andres' testimony and expert report were based upon his education, biometric and ergonomics programs based on publications from NASA, the National Institute of Occupational Safety and Health, the Occupational Safety and Health Administration, and the Federal Railroad Administration. Additionally, Dr. Andres performed twenty-four site inspections of railroad carmens' workplaces and visited the Rochester Yard in preparation for another FELA case ...

The [c]ourt properly denied Appellants' motion to preclude Dr. Andres' testimony as it was for the jury to decide the weight to be given to Dr. Andres' testimony after hearing his qualifications and the facts, data and conclusions upon which he based his opinions.

Trial Ct. Op., 7/27/16, at 6.

This ruling was well within the trial court's discretion. The court's analysis is consistent with decisions in other FELA cases finding that the methodology of Dr. Andres himself and other ergonomists is generally accepted in the ergonomic community. See Hewitt , 244 F.Supp.3d at 391 (Dr. Andres "employs multiple methodologies that are generally accepted in the field of ergonomics"); Rowley v. Union Pacific Railroad Co. , 2016 WL 6561296, *1–*2 (E.D. Wis. 2016) (ergonomic expert based opinion...