M.B. v. CSX Transp., Inc.

Decision Date11 September 2015
Docket NumberNo. 1:12–CV–0825 (GTS/RFT).,1:12–CV–0825 (GTS/RFT).
Citation130 F.Supp.3d 654
Parties M.B., an infant by parent and natural guardian Maureen SCOTT ; and Maureen Scott, individually, Plaintiffs, v. CSX TRANSPORTATION, INC., Defendant.
CourtU.S. District Court — Northern District of New York

Russo & Toner, LLP, Stephen B. Toner, Esq., of Counsel, New York, NY, for Plaintiffs.

Eckert Seamans Cherin & Mellot, LLC, Lawrence R. Bailey, Jr., Esq. of Counsel, White Plains, NY, for Defendant.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this personal injury action filed by M.B. and Maureen Scott, individually and as parent and natural guardian of M.B. ("Plaintiffs") against CSX Transportation, Inc. ("Defendant"), are Defendant's motion for summary judgment and Defendant's motion to preclude the use of the opinions of Plaintiffs' liability expert, Nicholas Bellizzi, in opposition to Defendant's motion for summary judgment and at trial. (Dkt. Nos. 49, 50.) For the reasons set forth below, Defendant's motion to preclude is granted and the motion for summary judgment is granted.

I. BACKGROUND
A. Procedural History

This action was originally commenced in New York State Supreme Court, County of Ulster, on or about March 23, 2012. (Dkt. No. 1.) Generally, the Complaint alleges that on November 27, 2010, while crossing railroad tracks located in Kingston, New York, M.B. was struck and injured by a train owned and carelessly operated by Defendant. (Dkt. No. 1, Attach. 1, at ¶¶ 10–18 [Pls.' Compl.].) Based on these factual allegations, the Complaint sets forth two causes of action: (1) negligence; and (2) the loss of M.B.'s services, love, companionship, and support. (Id. ¶¶ 19, 21.) Pursuant to 28 U.S.C. § 1332(a), this lawsuit was removed to the Northern District of New York on the basis of diversity jurisdiction. (Dkt. No. 1.)

Over the following two years, this matter endured a prolonged discovery process in which the original discovery deadline date of July 31, 2013, was extended several times until discovery was finally completed on May 16, 2014. (Dkt. Nos. 13, 19, 25, 30, 43, 47.) This delay was apparently caused by Plaintiffs' failure to comply with discovery deadlines and timely serve expert reports, culminating in sanctions1 being levied against them by United States Magistrate Judge Randolph F. Treece. (Dkt. No. 43.) On May 12, 2014, Mr. Bellizzi was finally deposed and on June 20, 2014, Defendant filed the current motions.

B. Statement of Undisputed Material Facts

The following material facts have been asserted and supported by Defendant in its Statement of Material Facts, and not denied in matching numbered paragraphs with supporting record citations by Plaintiffs in their response thereto, and thus admitted pursuant to Local Rule 7.1 of the Local Rules of Practice for this Court. (Compare Dkt. No. 56 [Def.'s Rule 7.1 Statement] with Dkt. No. 58, Attach. 2 [Pls.' Rule 7.1 Response].)

1. At the time of the accident, Plaintiff, M.B., was approximately thirteen years and ten months old.
2. The railroad tracks where the accident occurred are near Greenkill Avenue, south of Broadway Bridge, in Kingston, New York.
3. The accident occurred at approximately 2:30 p.m. in broad daylight on November 27, 2010, when a CSX train traveling in a southerly direction made contact with M.B.

4. Before the accident and at the point of impact, the train was traveling at approximately 38 miles per hour. (Compare Dkt. No. 56, ¶ 8 [Def.'s Rule 7.1 Statement, asserting above-stated fact and citing record evidence that establishes fact] with Dkt. No. 58, Attach. 2, at ¶ 8 [Plf.'s Rule 7.1 Response, failing to cite record evidence that controverts above-stated fact].)

5. The train's speed of 38 miles per hour was within the authorized speed (50 mph) of CSX's Albany Division Timetable for freight trains at the location of the accident and within the maximum allowable operating speed (60 mph) for freight trains on a Class 4 track.

6. Before the collision, M.B. ran across the railroad right-of-way toward the railroad track in an attempt to beat the train.

7. While attempting to cross the railroad tracks, M.B. tripped and fell.

8. Before contact, Russell Clark, the CSX train engineer, blew the train's horn and rang the train's bell to provide a warning to M.B. and to warn M.B. to get out of the way.

9. Indeed, the train gave audible warnings through either the train's horn or train's bell for approximately two (2) minutes and twenty (20) seconds before the point of impact with M.B. and continued to do so up until the time the train came to a complete stop after the accident.

10. Before November 27, 2010, M.B. was fully aware that trains would use the railroad tracks on a regular basis at the location of the accident. In addition, M.B. knew that train tracks are dangerous.

11. Before the day of the accident, Mr. Clark had never seen any pedestrians, individuals or trespassers cross the railroad tracks at this location.

C. Expert Reports
1. Plaintiffs' Expert—Nicholas Bellizzi

According to Mr. Bellizzi's curriculum vitae, he is a professional engineer licensed in both New York and New Jersey. (Dkt. No. 58, Ex. A., at 23.) Although Mr. Bellizzi also states he is an accident reconstructionist, he has not received accreditation or any other form of certification in the area of accident reconstruction. (Compare Dkt. No. 58, Ex. A, at ¶ 1 [Bellizzi Decl.] with Dkt. No. 50, Attach. 3, at 19:4–22 [Bellizzi Dep.].)

After reviewing the evidence, Mr. Bellizzi rendered the following opinions. The train consisted of 136 cars, including "73 loads [and] 63 empties," which amounted to a combined weight of 11,483 tons and extended to a combined length of 8,480 feet. (Dkt. No. 50, Attach. 2, at 4.) The train was initially traveling at 38 mph, or 55.7 feet per second, as it approached the point of impact. (Dkt. No. 50, Attach. 2, at 7.) The interval between the time that M.B. first became visible to the train crew inside the locomotive cab and the time that the locomotive struck M.B. was approximately five seconds. (Id. ) During these five seconds, the train traveled approximately 278.5 feet. (Id. ) The train operator blew the train's horn approximately two (2) seconds after M.B. became visible and was blown for approximately five-and-a-half seconds (5 ½) in total. (Id. ) The train's throttle went into idle approximately four (4) seconds after impact and the train's emergency brakes were applied approximately eleven (11) seconds after impact.2 (Id. at 7–8.) The train was traveling at 36 mph when the brakes were applied. (Id. at 7.) The train came to a complete stop fifty-four (54) seconds after M.B. was first visible and thirty-nine (39) seconds after the brakes were applied. (Id. at 8.) The train's average brake deceleration rate was slightly less than one mph per second (36 mph/39 seconds = .923 mph per second), which is 1.35 feet per second. (Id. )

According to Mr. Bellizzi, a train operator's perception reaction time ("PRT"), which is the total elapsed time from when an object or person is detected to applying the train's brake, is 1.0 to 1.2 seconds. (Id. ) This PRT was calculated based upon Mr. Bellizzi's prior experience "in numerous similar train accident cases." (Id. at 7–8.) Based on this PRT, he opined that, had the train operator (Russell Clark) applied the train's brakes 1.2 seconds after M.B. first came into view, the train would have arrived at the point of impact .27 seconds later, which would have been enough time for M.B. to clear the train's path.3 (Id. at 8–9.)

2. Defendant's Expert—Foster Peterson

According to Mr. Peterson's expert report, he has a degree in mechanical engineering and has held a variety of positions in the locomotive industry, including as a certified locomotive engineer, and has operated numerous passenger and freight trains. (Dkt. No. 50, Attach. 4, at 1 [Peterson Expert Report].)

After reviewing the evidence, Mr. Peterson rendered the following opinions. M.B. was visible approximately four to five seconds before impact. (Dkt. No. 50, Attach. 4, at 6 [Peterson Expert Report]; Dkt. No. 50, Attach. 4, ¶ 12 [Peterson Aff.].) Furthermore, the train was traveling at 38 mph immediately before the collision with M.B. (Dkt. No. 50, Attach. 4, at 4 [Peterson Expert Report]; Dkt. No. 50, Attach. 4, ¶ 12 [Peterson Aff.].) Two (2) seconds before the collision, the train's engineer sounded the train's horn. (Dkt. No. 50, Attach. 4, at 6 [Peterson Expert Report]; Dkt. No. 50, Attach. 4, ¶ 12 [Peterson Aff.].) In addition, the train's bell had been activated approximately two (2) minutes and twenty (20) seconds before impact and remained activated continuously until impact. (Dkt. No. 50, Attach. 4, at 6 [Peterson Expert Report]; Dkt. No. 50, Attach. 4, ¶ 15 [Peterson Aff.].) According to Mr. Peterson's review of the train's event recorder, M.B. was struck by the train at approximately 14:29:04. (Dkt. No. 50, Attach. 4, at 6 [Peterson Expert Report].) The train's throttle was shut off at 14:29:08, or approximately four (4) seconds after impact, and a service brake reduction was applied at 14:29:09, or approximately five (5) seconds after impact. (Dkt. No. 50, Attach. 4, at 4 [Peterson Expert Report].) The emergency brake was then applied at 14:29:14, or approximately ten (10) seconds after impact. (Id. )

In contrast to Mr. Bellizzi's opinion, Mr. Peterson opines that, based upon his experience, the PRT for a train operator is 1.5 to 2.5 seconds. (Dkt. No. 50, Attach. 4, ¶ 13 [Peterson Aff.].) Mr. Peterson also takes exception to Mr. Bellizzi's use of an average deceleration time over the entire stop in performing his calculations. (Id. ¶ 9.) According to Mr. Peterson, average deceleration "assumes linear, or constant, deceleration and ignores the physics of train braking." (Id. ) Rather, Mr. Peterson states that an

emergency brake application has to propagate through the brake pipe (at approximately 930 feet per second in emergency) and the brake cylinder pressure
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