Major v. Csx Transp.

Decision Date18 August 2003
Docket NumberNo. CIV.A. DKC 96-3940.,CIV.A. DKC 96-3940.
Citation278 F.Supp.2d 597
PartiesMargaret MAJOR, et al. v. CSX TRANSPORTATION, et al.
CourtU.S. District Court — District of Maryland

Sandra Harlen Benzer, Stephen B. Caplis, Natalie M. McSherry, Melissa Lynn Menkel, Whiteford, Taylor, and Preston, Baltimore, MD, for Defendants.

Roger A. Doumar, Thomas C. Summers, Law Offices of Peter G. Angelos, Baltimore, MD, for Plaintiff/Indexed Party.

William F. Gately, Howell and Gately, Baltimore, MD, for Plaintiff.

Mark Gebauer, Eckert, Seamans, et al., Harrisburg, PA, for Defendant.

James E. Gray, Venable, Baetjer and Howard, LLP, Baltimore, MD, for Defendant.

James T. Holden, InfoPlanet Voice & Data, Inc., La Jolla, CA, for Defendant.

David H. Hollander, Jr., Goodell, DeVries, Leech and Dann, LLP, Baltimore, MD, for Defendant.

Edwin David Hoskins, The Law Offices of David E. Hoskins, LLC, Baltimore, MD, for Plaintiff.

Warren L. Simpson, Jr., John E. Kawczynski, Graham E. Robb, Weber, Gallagher, Simpson, Stapleton, Fires and Newby, LLP, Philadelphia, PA, for Defendant.

Michael B. MacWilliams, Venable, Baetjer, and Howard, LLP, Baltimore, MD, for Defendant.

Lawrence M. Mann, Alper and Mann, PC, Washington, DC, for Plaintiff.

Douglas F. Murray, Whiteford, Taylor and Preston, Baltimore, MD, for Defendant.

Eric Lee Siegel, Henrichsen, Siegel, PLLC, Washington, DC, for Plaintiff.

George A. Weber, III, Law Offices of Peter G. Angelos, Baltimore, MD, for Plaintiff.

Steven M. Weisbaum, The Weisbaum Law Firm, Washington, DC, for Plaintiff.


CHASANOW, District Judge.

Presently pending and ready for resolution in this case arising from a train collision are: (1) the motion of Defendant CSX Transportation, Inc. (CSXT) for summary judgment; (2) the motion of Defendant National Passenger Railroad Corporation (Amtrak) for summary judgment; and (3) the motion of both Defendants CSXT and Amtrak to strike Plaintiff's references to National Transportation and Safety Board (NTSB) report materials. The issues have been fully briefed and no hearing is deemed necessary. Local Rule 105.6. For reasons that follow, the court will grant in part and deny in part Defendants' motion to strike; grant in part and deny in part CSXT's motion for summary judgment; and deny Amtrak's motion for summary judgment.

I. Background

Plaintiff Margaret Major is the surviving widow of James Major, (Decedent or Mr. Major), and the mother of Decedent's child James M. Major. At the time of the accident, Decedent was the conductor of MARC train 286. Plaintiff brings claims against Decedent's employer, CSXT, pursuant to the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (FELA) and against Amtrak for "negligence, wrongful death, and survival action." Paper no. 35, at 8.

The following facts are uncontroverted. On February 16, 1996, a fatal collision occurred between MARC train 286, a commuter train operated by Defendant CSXT, and Amtrak train 29, operated by Defendant Amtrak in Silver Spring, Maryland.

Wayside signal 1124-2 is located approximately 1000 feet west of Kensington Station and displayed an "approach" indication when MARC train 286 passed it.1 The "approach" indication meant that MARC train 286 should proceed at a speed no greater than 30 mph and be prepared to stop at the next signal, which was located at Georgetown Junction. Signal 1124-2 displayed an "approach" indication because Amtrak train 29 was traveling on the same track in the opposite direction. Amtrak train 29 was to cross over to another track at Georgetown Junction.

After passing signal 1124-2, MARC train 286 stopped at Kensington Station to pick up a passenger. After the passenger had boarded, instead of proceeding in accordance with the "approach" indication, the MARC crew operated their train at a speed of approximately 66 mph. The signal at Georgetown Junction displayed a "stop" indication to stop oncoming traffic in order to permit Amtrak train 29 to cross over to the other track At approximately 5:39 p.m., Amtrak train 29 came around a bend just east of the crossover at Georgetown Junction. As the Amtrak train came out of the bend, its crew saw MARC train 286 approaching it head-on on the same track at a speed of 66 mph. The Amtrak crew assessed the situation and Donald Noble (Noble), the engineer of Amtrak train 29, chose to try to accelerate the train in an attempt to enter the crossover so that the collision would result in a glancing blow to the baggage cars of the Amtrak train rather than a head-on collision. Although Noble was able to avoid a head-on collision, the collision nevertheless left 11 people on MARC train 286, including Decedent, dead. None of the passengers, staff, or crew of Amtrak train 29 suffered fatalities.

There is little direct evidence of what the CSX crew2, all of whom died in the collision, were doing immediately before and at the time of the collision. John Breeden, Jr., a CSX engineer on a westbound train traveling just ahead of the AMTRAK train, testified that he heard Mr. Orr call the signal at Kensington but did not hear the aspect, probably because of a defect in the radio system. Paper no. 275, Ex. M, at 458. The event recorder data reflect that the CSX train was traveling at approximately 66 mph before the collision, at 64 mph at the time the crew applied the emergency braking when the Georgetown "stop" signal came into view, and at a speed of between 46 and 38 mph at the time of impact. Evidence concerning the duties of the various crew members will be discussed below.

II. Motion to Strike

CSXT and Amtrak move to strike references that Plaintiff makes in her Oppositions to Defendants' summary judgment motions to non-factual information from the NTSB Report concerning the accident underlying the case at bar. Defendants include a list of what they argue are offending references from Plaintiff's Oppositions and should be stricken. Paper no. 277, Appendix A.

Plaintiff acknowledges that NTSB conclusions and findings are not admissible at trial, pursuant to the Independent Safety Board Act of 1974 (Safety Act), 49 U.S.C. § 1154(b), which states:

Reports.—No part of a report of the [NTSB], related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.

Id. The regulations adopted pursuant to the Safety Act explicitly prohibit the use of non-factual portions of NTSB reports. As stated at 49 C.F.R. § 835.2:


Board accident report means the report containing the Board's determinations, including the probable cause of an accident, issued either as a narrative report or in a computer format ("briefs" of accidents). Pursuant to section 701(e) of the Federal Aviation Act of 1958 (FA Act), and section 304(c) of the Independent Safety Board Act of 1974 (49 U.S.C. 1154(b)) (Safety Act), no part of a Board accident report may be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such reports.

Factual accident report means the report containing the results of the investigator's investigation of the accident. The Board does not object to, and there is no statutory bar to, admission in litigation of factual accident reports. In the case of a major investigation, group chairman factual reports are factual accident reports.

Courts have consistently held that "the factual portions of a NTSB report are admissible into evidence, while excluding any agency conclusions on the probable cause of the accident." Hurd v. United States, 134 F.Supp.2d 745 (D.S.C.2001), aff'd, 34 Fed.Appx. 77 (4th Cir.2002); Travelers Ins. Co. v. Riggs, 671 F.2d 810, 816 (4th Cir.1982) ("[§ 1154(b)] forbids the use of conclusory sections of NTSB reports, and [we] thus hold that the district court properly excluded them.").

Plaintiff notes that she is not asking the court to rely upon the NTSB opinions and conclusions from its Report with respect to issues of probable cause of the accident and the responsibility and negligence of Defendants. Instead, Plaintiff seeks to advise the court, in response to Defendants' challenges to Plaintiff's experts and expert opinions, that the NTSB essentially agrees with Plaintiff's experts. The fact remains, however, that on a motion for summary judgment, the court may only consider evidence that is admissible. Fed.R.Civ.P. 56(e); see Maryland Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1251 (4th Cir.1991).

Plaintiff argues that only conclusions or opinions from an NTSB Report that relate to fault or probable cause should be inadmissible and that other conclusions or opinions may still be admissible. The case on which Plaintiff relies for this proposition, Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988), is a Supreme Court case that addresses admissibility under an exception to the hearsay rule; not admissibility under the Safety Act. Plaintiff has not provided any support that this distinction between conclusions and opinions that do and do not relate to probable cause applies to the Safety Act. References to NTSB opinions and conclusions rendered inadmissible by the Safety Act must be stricken, therefore, regardless of whether they are used to address issues of probable cause and negligence or to bolster the credibility of experts and their opinions.

Plaintiff also argues that references set forth on pages 6 and 14 of the Opposition to Amtrak's summary judgment motion do not reference matters related to conclusions or opinions of the NTSB and therefore are admissible and should not be stricken. Plaintiff argues that those were references to factual information in the NTSB Report regarding drawings, depictions, or references to the positioning of individuals prior to, and after, the collision at issue. Defendant counters that the...

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