Johnson v. Nat'l R.R. Passenger Corp., Civil Case No. 2013 CA 001107 B
| 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 |
Calendar II
ORDER
This matter is before the court on defendant National Railroad Passenger Corporation's ("Amtrak's") Motions to Exclude Testimony of Raymond A. Duffany, Charles Kincaid, PH.D., and Thomas Roth; plaintiff Willie F. Johnson's oppositions, and Amtrak's replies thereto. Johnson brings 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.
Amtrak moves to exclude Duffany's expert testimony, claiming (1) that Duffany's opinions are not based on a national standard and are not reasonable; (2) that Duffany's opinions are not based on adequate fact and are merely conjectural; and (3) that the Federal Railroad Safety Act ("FRSA") precludes the FELA and prevents Duffany from prescribing negligence standards. Johnson responds that (1) Duffany proffers an "as needed" standard; (2) that Duffany's opinions are not speculative but, rather, are well-founded in on-site investigation and review of documents, reports, and interviews; and (3) that Federal preclusion does not apply and does not prevent Duffany's testimony.
Amtrak moves to exclude Kincaid's expert testimony, claiming that Kincaid's opinion is not based on adequate fact and is contrary to Dr. Selya's medical records. Johnson disputes this and argues that Kincaid proffered a reasonable opinion supported by the evidence.
Amtrak similarly moves to exclude Roth's expert testimony, claiming that Roth's assumptions and findings of fact do not reflect Johnson's testimony or the record as a whole. Johnson opposes, arguing that the record supports Roth's testimony and questions of fact exist for a jury to resolve. For the reasons stated below, the court denies Amtrak's three motions to exclude.
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 plans to introduce testimony at trial from Duffany, Roth, and Kincaid. Duffany has on-the-job experience and first-hand knowledge of the mechanisms at issue in the present case, gained from a career that includes more than thirty-five years of work with railroads. Duffany, however, lacks any formaleducational training beyond that gleaned from experience. Plaintiff plans to present Kincaid as a vocational expert who provides an expert opinion as to Johnson's vocational capabilities. Finally, plaintiff intends to call Roth, an economic expert, to provide calculations regarding Johnson's lost earning capacity and lost wages.
Expert testimony is required to prove the standard of care where a subject matter at issue is beyond the "realm of knowledge of an average lay person." Young v. D.C., 752 A.2d 138, 145-46 (D.C. 2000). "Where expert testimony is necessary, however, it is not sufficient if it consists merely of the expert's opinion as to what he or she would do under similar circumstances." Toy v. District of Columbia, 549 A.2d 1, 7 (D.C. 1988) (citations omitted). The expert must clearly articulate and reference "a standard of care by which the defendant's actions can be measured." District of Columbia v. Carmichael, 577 A.2d 312, 314 (D.C. 1990) (citations omitted). Plaintiff must establish a standard of care by which a trier of fact could measure the conduct of a defendant and determine whether that conduct deviated from the standard. Id. at 316.
The court allows expert testimony when (1) the subject matter "must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average lay man"; (2) "the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth"; and (3) expert testimony is inadmissible if "the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert." Dyas v. United States, 376 A.2d 827, 832 (D.C. 1977). The third prong incorporates the Frye test; under Frye, scientific testimony is admissible only if the theory or methodology onwhich it is based has gained general acceptance in the relevant scientific community. Jones v. United States, 990 A.2d 970, 977 (D.C. 2010); see also Frye v. U.S., 293 F 1013 (D.C. Cir. 1923).
1. Duffany Provides a Proper Standard of Care
Amtrak contends that Duffany does not provide a national standard of care regarding the lubrication of switches, and that by failing to do so, his testimony would represent mere unsubstantiated opinion. Johnson counters that Duffany's proffered "as needed" standard is sufficient, and that Duffany's testimony that Amtrak fell short of the "as needed" standard is not a mere opinion.
Amtrak argues that no basis exists for Duffany's opinion. Amtrak points to Duffany's own affidavit, which states that no national standard exists, that Amtrak instructed workers to lubricate the switch two weeks prior, that lubrication can withstand sub-freezing temperatures (while the temperature on the two days prior to the accident was above thirty-two degrees), and that Amtrak's "snow duty operations" demonstrated extra maintenance procedures. Amtrak states that these assertions are inconsistent with Duffany's opinion that Amtrak breached some standard.
The court finds Amtrak's argument unpersuasive. First, Duffany provides that reasonable standards vary by location and situation, and that, nationwide, lubrication is simply required "as needed." Cf. Keranen v. Amtrak, 743 A.2d 703, 716 (D.C. 2000) (). Second, assuming that workers applied lubrication on February 4, 2010, the switch may have needed further maintenance following the two major snowfalls. Althoughthe lubricant retains its properties at sub-freezing temperatures, it does not contradict Duffany's expert opinion that switches require additional treatment following major winter snow events. Additionally, Amtrak's "snow duty operations" require crews to maintain their own switches and clear switches of ice and snow. In fact, Duffany states that clearing snow and ice from the switches may diminish the amount of lubrication present on a switch; it is not inconsistent for Duffany to assert that the switch malfunctioned without lubrication after emergency procedures were performed.
Similarly, Amtrak argues that Duffany's proffered standard regarding ballast is inadequate. However, Duffany's opinion stems from observed standards from across the industry In situations in which no national standard of care exists, our Court of Appeals has looked to industry customs and practices to help determine standards of care that would be relevant to the issue of negligence. Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 199 (D.C. 1991); see also Sledd v. Washington Metro. Area Transit Auth., 439 A.2d 464, 469 (D.C. 1981). Duffany provides examples of standards from Union Pacific and CSX Transportation—both national railway companies—and the states of Arizona and California. Using these examples of state and business standards allows the court to accept Duffany's testimony regarding an appropriate standard of care. This court finds this sufficient to survive Amtrak's motion to exclude.
II. The Third Dyas/Frye Factor Does Not Bar Duffany's Testimony
Amtrak contends that because Duffany cannot point to the presence of a uniform national standard for ballasts or lubrication, his testimony is barred by the third Dyas/Frye factor, which states, "expert testimony is impermissible if the state of the pertinent art or scientific knowledgedoes not permit a reasonable opinion to be asserted." Dyas, 376 A.2d at 832. Amtrak argues that Duffany merely offers a preference not founded in well-recognized scientific principles.
Amtrak is incorrect in its application of the third Dyas/Frye factor. First, "Frye only applies to 'a novel scientific test or a unique controversial methodology or technique." Jones v. U.S., 27 A.2d 1130, 1137 (D.C. 2011). "The issue is consensus versus controversy over a particular technique, not its validity." Id. (quoting U.S. v. Jenkins, 887 A.2d 1013, 1022 (D.C. 2005)). Moreover, "satisfaction of the third Dyas criterion begins—and ends—with a determination of whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology." President & Dirs. of Georgetown Coll. v. Wheeler, 75 A.3d 280, 291 (D.C. 2013) (citation omitted) ( a challenge to experts' conclusions drawn from review of medical literature and case studies).
The Dyas/Frye test, therefore, does not preclude this court from allowing Duffany's testimony. Here, Duffany forms his opinions on "systemic observation" of basic physical phenomena and documentary evidence. Duffany...
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