Houser v. Norfolk S. Ry. Co.

• Decision Date: 07 September 2017
• Docket Number: 6:15–CV–06297 EAW–MWP
• Parties: Robert HOUSER, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Western District of New York

264 F.Supp.3d 470

Robert HOUSER, Plaintiff,

v.NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

6:15–CV–06297 EAW–MWP

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

Signed September 7, 2017

James M. Duckworth, Voci Ravenell Bennett, Keller & Goggin, P.C., Philadelphia, PA, for Plaintiff.

Lynnette Nogueras–Trummer, Susan C. Roney, Nixon Peabody LLP, Buffalo, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Robert Houser ("Plaintiff") commenced this action pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et. seq. ("FELA"), claiming that he had been injured by the negligence of his employer, Norfolk Southern Railway Company ("Defendant"), when he was riding as a passenger in a truck owned by Defendant and operated by Gary Miller ("Miller").¹ (Dkt. 1). Plaintiff alleges that Miller failed to exercise reasonable care in avoiding a motor vehicle collision with Suzanne Clarke ("Clarke") after Clarke lost control of her vehicle due to inclement road conditions. (Dkt. 60–5 at ¶ 2). The collision dislodged the front leftmost tire from the truck, causing Miller to lose control of the truck and veer left across lanes of traffic. (Id. ). The truck came to a sudden and complete stop in a drainage ditch, which jolted Plaintiff's knee into the dashboard, allegedly causing injury. (See Dkt. 60–2 at 30; Dkt. 60–5 at ¶ 2).

Presently before the Court is Defendant's motion to strike Plaintiff's expert report and Defendant's motion for summary judgment. (Dkt. 60). For the reasons set forth below, Defendant's motion to strike and motion for summary judgment are both granted, and Plaintiff's complaint is dismissed with prejudice.

BACKGROUND

I. The Accident ²

Plaintiff and Miller were employed by Defendant as bridge and building mechanics. (Dkt. 60–2 at 7–8, 16). In this position, Plaintiff was primarily required to maintain bridges and to "replace ties on open deck bridges." (Id. at 8). Plaintiff had worked with Miller in some capacity for about 25 years. (Id. at 16).

On February 19, 2013, Plaintiff and Miller were tasked with setting up guardrails along bridges near Canisteo, New York. (Id. at 10–11). They arrived for work at Defendant's headquarters in Hornell, New York around 6:30 A.M., at which time Plaintiff and Miller participated in a "safety meeting" and a "job briefing." (Id. at 12–13, 15–16). Upon completing their duties at the first job site at around 10:00 A.M., Plaintiff and Miller packed the truck and began driving towards the next location. (Id. at 13–14). Miller drove the truck between job sites on the date of the accident. (Id. at 15–16).

The weather and road conditions on February 19th were "snowy, windy, and wet." (Id. at 16). Plaintiff described the truck's rate of speed as "relatively slow" and estimated that he and Miller were traveling "around 25 MPH" due to the weather conditions. (Dkt. 60–11; see Dkt. 60–9 at 2 (noting that the truck was traveling at 25 MPH in a highway vehicle accident report, dated February 19, 2013, and completed by Plaintiff)). Plaintiff explained that they "were being real careful." (Dkt. 60–11). As Plaintiff and Miller approached a curve in the road, Plaintiff observed Clarke's car drive into focus as she began "fishtailing" and "swerving back and forth." (Dkt. 60–2 at 18). Plaintiff recalled that Miller "started slowing down immediately" and turned the truck as far right as he could—bracing it up against the guardrail—in order to avoid a collision. (Dkt. 60–11). Clarke's vehicle swerved across the double yellow line and collided with the front of the truck, (Dkt. 60–3 at 2 (New York State Department of Motor Vehicles Police Accident Report); see Dkt. 60–2 at 33), which dislodged the truck's leftmost front tire and caused the wheel rim to hit the road. (Dkt. 60–11). Plaintiff testified that the accident occurred within about five seconds from the time he first observed Clarke's vehicle. (Dkt. 60–2 at 106).

At this point, Miller lost control of the truck, and began "hollering, ‘I can't hold it. I can't steer it.’ " (Dkt. 60–11). The truck then veered into a roadside ditch, causing Plaintiff's leg to jam against the dashboard. (Dkt. 60–2 at 30). Upon coming to a complete stop, Miller and Plaintiff exited the truck and tended to Clarke and her passengers. (Id. at 26, 29). Clarke and her passengers were treated by medical personnel and ambulatory staff. (See id. at 30). Plaintiff returned to work for several weeks after the incident, but his condition continued to deteriorate as he experienced worsening chronic pain in his leg. ( Dkt. 60–2 at 68, 71–72).³

II. Procedural Posture

On February 17, 2015, Plaintiff filed this action against Defendant and Clarke, alleging that his knee injury

resulted from the negligence of both Defendant and Clarke. (Dkt. 1). Clarke was eventually terminated from this action pursuant to a stipulation of partial discontinuance, entered on July 1, 2016. (Dkt. 54).

After discovery concluded, on January 27, 2017, Defendant filed a motion for summary judgment and a motion to strike the expert report of Dr. Carl Berkowitz ("Dr. Berkowitz"). (Dkt. 60; see also Dkt. 63). Defendant contends that Plaintiff failed to raise a genuine dispute of material fact as to Defendant's negligence, and that Dr. Berkowitz's expert report should be stricken as speculative and unsupported by the record. (Dkt. 60–16). Plaintiff opposes Defendant's motions. (Dkt. 62).

DISCUSSION

I. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

"Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the ‘evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.’ " Rowe v. Wal–Mart Stores, Inc. , 11 F.Supp.2d 265, 266 (W.D.N.Y. 1998). Once the moving party has met its burden, the opposing party " ‘must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. ’ " Caldarola v. Calabrese , 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. , 475 U.S. at 586–87, 106 S.Ct. 1348 ) (emphasis in original). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ...." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

II. Motion to Strike Expert Report

"[I]t is appropriate for a district court to decide questions regarding the admissibility of evidence, including expert opinion evidence, on a motion for summary judgment." Bah v. Nordson Corp. , No. 00 CIV 9060 (DAB), 2005 WL 1813023, at *6 (S.D.N.Y. Aug. 1, 2005) (citing Raskin v. Wyatt Co. , 125 F.3d 55, 66 (2d Cir. 1997) ). "This is so because on a summary judgment motion, a ‘district court properly considers only evidence that would be admissible at trial.’ "

Borgognone v. Trump Plaza , No. 98-CV-6139 (ILG), 2000 WL 341135, at *2 (E.D.N.Y. Mar. 9, 2000) (quoting Nora Beverages v. Perrier Grp. of Am. , 164 F.3d 736, 746 (2d Cir. 1998) ).

Evidence contained in an expert's report therefore must be evaluated under Fed. R. Evid. 702 before it is considered in a ruling on the merits of a summary judgment motion. If a proffer of expert testimony in the form of an expert report is excluded as inadmissible under Rule 702, the summary judgment determination is made on a record that does not include that evidence.

Cacciola v. Selco Balers, Inc. , 127 F.Supp.2d 175, 180 (E.D.N.Y. 2001) (citing Raskin , 125 F.3d at 66–67 ).

A. Rule 702 of the Federal Rules of Evidence

Rule 702 of the Federal Rules of Evidence sets forth the necessary requirements for the admissibility of expert evidence. Specifically, Rule 702 provides that the expert's opinion must: (1) "help the trier of fact to understand the evidence or to determine a fact in issue"; (2) be "based on sufficient facts or data"; (3) be "the product of reliable principles and methods"; and (4) have resulted from the expert's "reliabl[e] application of] the principles and methods to the facts of the case." The Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) recognized the "gatekeeping role" of a trial judge in determining the admissibility of expert testimony. Id. at 597, 113 S.Ct. 2786. "The court performs the same role at the summary judgment phase as at trial; an expert's report is not a talisman against summary judgment." Raskin , 125 F.3d at 66. "The trial judge's gatekeeping task under Rule 702 and Daubert is two-fold: she must determine whether the evidence ‘both rests on a reliable foundation and is relevant to the task at hand.’ " Colon ex rel. Molina v. BIC USA, Inc. , 199 F.Supp.2d 53, 69 (S.D.N.Y. 2001) (quoting Daubert , 509 U.S. at 597, 113 S.Ct. 2786 ). "An expert's opinions that are without factual basis and are based on speculation or conjecture are ... inappropriate material for consideration on a motion for summary judgment," as are "[a]n expert's conclusory opinions." Major League Baseball Props., Inc. v. Salvino, Inc. , 542 F.3d 290, 311 (2d Cir. 2008).

B. Dr. Berkowitz's Report Must...