Johnson v. Nat'l R.R. Passenger Corp.

• Decision Date: 26 August 2015
• Docket Number: Civil Case No. 2013 CA 001107 B
• Parties: WILLIE F. JOHNSON, JR., Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.
• Court: D.C. Superior Court

WILLIE F. JOHNSON, JR., Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.

Civil Case No. 2013 CA 001107 B

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION

August 26, 2015

Calendar II

Judge John M. Mott

ORDER

This matter is before the court on defendant National Railroad Passenger Corporation's ("Amtrak's") Motion to Exclude Testimony of Complaints/Notice about Other Switches, Amtrak's Motion to Exclude Evidence From or Reference to Theodore Caldwell v. National Railroad Passenger Corp., 2007CA7890B, plaintiff Willie F. Johnson's oppositions, and Amtrak's replies thereto.

Johnson has brought a negligence claim under the Federal Employer's Liability Act ("FELA")¹ for Amtrak's failure to properly lubricate a hand thrown switch and its failure to provide a safe walkway. Johnson intends to introduce testimony regarding problems with switches at Amtrak's facilities. Moreover, Johnson's expert witness, Raymond A. Duffany, relies on notes regarding improperly maintained switches taken while retained as an expert in Caldwell. Amtrak moves to exclude testimony regarding switches and Caldwell, arguing that (1) Johnson never gave notice of a problem with the switch he alleges caused injury; (2) the testimony concerns unrelated complaints involving different switches; and (3) reference to Caldwell is not probative and fails to demonstrate notice. For the reasons stated below, the courtdenies, in part, Amtrak's motion to exclude complaints about other switches, and denies Amtrak's motion to exclude reference to Caldwell.

Background

Johnson worked for Amtrak as a Class 4 Engineer until November 27, 2010. Johnson's job duties included the throwing of switches for the adjustment of tracks to facilitate trains entering the Amtrak Ivy City Maintenance Facility Annex. Johnson alleges that on February 19, 2010, he attempted to throw switch #944 and the handle jammed, which allegedly resulted in acute lumbar and left leg pain. Johnson claims that when he felt the pain, he took a few steps backward, slipped and fell from the ballast (gravel/broken stone) down an embankment and into a ravine (the area at the bottom of an embankment), suffering injury to his hip and lower back.

On February 7, 2013, Johnson brought this negligence action under FELA in which he alleges that Amtrak failed to properly lubricate the switch, and that Amtrak failed to provide an adequate walkway, resulting in an unsafe work area. Johnson wishes to introduce testimony and evidence regarding other switch failures in order to establish that Amtrak had notice of lubrication issues.

Additionally, Johnson wishes to introduce expert testimony from Raymond Duffany at trial. Duffany formed his opinions, in part, on notes taken from working on the prior Caldwell case, in which the plaintiff alleged three violations of FELA due to injuries sustained while throwing switches between 2004 and 2006. Duffany worked with many documents in Caldwell, including emails from four individuals that documented reports that switches—including #944—were hard to throw, in need of lubrication, and needed maintenance between December 2004 and January 2006. Duffany also references deposition testimony from Caldwell in 2008, concerning the frequency of lubrication. Additionally, Duffany remarks that in at least two of thedepositions in the present matter, deponents reference complaints about switches from Caldwell and in general. Amtrak petitions the court, however, to exclude reference to Caldwell or prior switch failures from any testimony.

Standard of Review

Proof of prior similar incidents "is ... subject to the reasonable discretion of the trial court as to whether the defendant is taken by unfair surprise and as to whether the prejudice or confusion of issues which may probably result from such admission is disproportionate to the value of such evidence." Amtrak v. McDavitt, 804 A.2d 275, 287 n.7 (D.C. 2002) (citing Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394, 400 (5th Cir. 1965)). Although courts exclude evidence which will not assist the trier of fact,

judges should rely on the adversary system, rather than on the exclusion of evidence, to guard against potential juror confusion from the presentation of scientific evidence, noting that '[v]igororous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'

Benn v. United States, 978 A.2d 1257, 1275 (D.C. 2009) (quoting Daubert v. Merril Dow Pharms., 509 U.S. 579, 588 (1993).

Analysis

I. Caldwell

Amtrak argues that the court should exclude reference to Caldwell because the case involved different switches, and Amtrak asserts that no evidence exists to show that Switch #944 was in the same condition as the Caldwell switches. Amtrak contends that Johnson has failed to demonstrate similar temporal or physical conditions, including levels of lubrication and weather conditions. See McDavitt, 804 A.2d at 287 ("To be admissible, the 'prior incidents should have occurred under substantially similar temporal as well as physical conditions...'"). Johnsonsimilarly points to McDavitt, noting that the similarity requirement is "much relaxed" when previous cases are introduced to show that a defendant possessed notice. Id. (quoting District of Columbia v. Doe, 524 A.2d 30, 34-35). Under the relaxed standard, "the similarity in the circumstances of the accidents can be considerably less than that which is demanded when the same evidence is used for one of the other valid purposes." Id. Moreover, the prior events need only call attention to the present issue to be admissible. Id. Johnson argues that testimony regarding Caldwell demonstrates that Amtrak had notice that its improperly lubricated switches have a propensity to jam.

Indeed, Duffany's findings and work with Caldwell strongly support the proposition that Amtrak possessed notice. Caldwell demonstrates that Amtrak knew that improperly lubricated switches had a tendency to jam. Caldwell reflects that Amtrak employees frequently complained of difficulty in throwing unlubricated switches. It also demonstrates that Amtrak knew of difficulties with switch #944 itself. The relaxed standard, therefore, applies, and the events of Caldwell are admissible because they "call defendant's attention to the dangerous situation." Id.

The court finds that although the events in Caldwell and the present case occurred between four and six years apart, the relaxed temporal standards allow reference. The temporal requirement exists simply because conditions and situations change over time. District of Columbia v. Doe, 524 A 2d 30, 34-35 (D.C. 1987). However, no indication exists of any change to the switches over time.²

Amtrak argues that any span of years between events is per se unreasonable. See Small v. Pa. R. Co., 80 F.2d 704, 707 (D.C. Cir. 1935) (rejecting evidence of an accident which occurred eleven years prior). However, Small held that prior evidence of one train crew's neglect was inadmissible to demonstrate the evidence of another crew's. Id. The court specifically notedthat evidence may be admissible when it demonstrates notice, the court does not declare, however, that eleven years is too great a span to show notice. Id. (contrasting the evidence in Small, which involved different crews, with other cases where the introduction of prior history served to demonstrate notice to the defendants as to hazardous conditions).

Moreover, this court rejects Amtrak's argument that no evidence exists that Switch #944 was in a physical condition similar to the switches in Caldwell. However, the injury-causing switches in Caldwell were of the same make and type as Switch #944; most of the switches in the Ivy City yard are of the same make. Finally, although Amtrak argues that there is no direct evidence that Switch #944 was unlubricated like the switches in Caldwell, this is a question of fact for the jury. The court, therefore, denies Amtrak's motion to exclude reference to Caldwell.

II. Switches

Amtrak argues that evidence of prior problems with switches in inadmissible because it, too, fails to demonstrate notice required by McDavitt. Amtrak asserts that Johnson himself never provided notice of any problems with Switch #944 prior to his alleged injury, and cannot demonstrate that he himself provided notice. Amtrak additionally states that Johnson is attempting to introduce general complaints about unrelated switches. Amtrak argues that none of the named employee witnesses possessed knowledge about issues with Switch #944, that none of the witnesses complained about problems with Switch #944, and that their testimony would fail to demonstrate knowledge on Amtrak's behalf.³ Finally, Amtrak argues that...