Moody v. CSX Transp., Inc.

• Decision Date: 21 September 2017
• Docket Number: 07–CV–6398P
• Citation: 271 F.Supp.3d 410
• Parties: Wakeesha N. MOODY, Plaintiff, v. CSX TRANSPORTATION, INC., New York Central Lines, LLC and NYC Newco, Inc., Defendants.
• Court: U.S. District Court — Western District of New York

271 F.Supp.3d 410

Wakeesha N. MOODY, Plaintiff,

v.CSX TRANSPORTATION, INC., New York Central Lines, LLC and NYC Newco, Inc., Defendants.

07–CV–6398P

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

Signed September 21, 2017

Michael A. Bottar, Bottar Leone, PLLC, Syracuse, NY, for Plaintiff.

Jonathan P. Harmon, McGuire Woods LLP, Richmond, VA, Susan C. Roney, Nixon Peabody LLP, Laurie Styka Bloom, Nixon Peabody LLP, Buffalo, NY, for Defendant.

MARIAN W. PAYSON, United States Magistrate Judge

DECISION & ORDER

PRELIMINARY STATEMENT

Plaintiff Wakeesha N. Moody ("Moody") has sued defendants CSX Transportation, Inc. ("CSX"), New York Central Lines, LLC, and NYC Newco, Inc., (collectively, "defendants") for personal injuries sustained in a railway accident. (Docket # 1–2). On June 16, 2006, Moody attempted to crawl underneath a train car located in a railyard operated by CSX in Lyons, New York (the "Lyons yard"). The train car began moving while Moody was beneath it, and she was dragged approximately twenty feet, resulting in injuries including an above-the-knee amputation of her left leg and the loss of toes on and crush injuries to her right leg. Following the Court's entry of a Decision and Order granting in part and denying in part defendants' motion for summary judgment (Docket # 90), the only claims that remain are for failure to warn by sounding a horn or bell prior to moving the train car and for failure to post appropriate warning signage in the Lyons yard.

Currently pending before this Court are three motions. (Docket ## 65, 68, 98). First, defendants have moved to exclude testimony from Moody's expert Stephen Timko ("Timko") on the grounds that Timko's proffered opinions are not appropriate subjects for expert testimony and do not meet the standards for admissibility established by Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). (Docket # 65). Second, Moody has moved for spoliation sanctions.

(Docket # 68).¹ Finally, defendants have moved to bifurcate the trial and try the issue of liability first and proceed only to the issue of damages in the event the jury determines that defendants are liable. (Docket # 98). Oral argument on the three pending motions was held on August 2, 2017. (Docket # 105).

I. Defendants' Motion to Exclude Testimony from Timko

A. Factual Background

Moody has disclosed Timko as an expert witness who is expected to testify at trial. (Docket # 65–2). Timko has 49 years of experience in the railroad industry, and for the last 16 years has owned a railroad consulting service. (Id. at 5). His prior experience includes serving as the Vice President and General Manager of Western New York & Pennsylvania RR, LLC, Assistant Superintendent for Train Operations for the Norfolk Southern Railroad, and Manager of Operations Planning for Conrail. (Id. at 6). According to Timko's expert report, his opinions are based on his knowledge, experience, and training, as well as his review of the following information: the deposition transcripts of Moody, witness Tiffany Johnson, CSX conductor Richard Roden, CSX engineer Frederick Albrecht, CSX police officer Gary Gawronski, and CSX police officer Alan Lee; CSX's responses to plaintiff's notices to produce and interrogatories; the Lyons Police Department accident report; the statements of Sheldon Davis, Tiffany Johnson, Joseph Monk, Richard Roden, and Frederick Albrecht; the tax map of the Lyons yard; photographs of the Lyons yard; a diagram of the Lyons yard; a video of the Lyons yard and surrounding area taken in 2008; and, his field inspection of the Lyons yard made from public property on January 17, 2015. (Id. at 9–10). Timko's expert report includes the following opinions: CSX failed to properly inform, educate, observe, and enforce a ban on pedestrian traffic at the Lyons yard; CSX failed to enlist the assistance of both the Lyons Police Department and the Wayne County Sheriff's Office to prevent pedestrian traffic at the Lyons yard; CSX failed to educate local political officials, media personnel, law enforcement personnel, local residents, and its own employees by sponsoring Operation Lifesaver events in Lyons;² CSX failed to erect fences or barricades to prohibit the movement of the public onto the rail lines and railroad property in Lyons; CSX failed to properly post the Lyons yard with signs indicating potential dangers to the public; CSX failed to acknowledge observations by their own agents and other employees that the Lyons yard was used as a "private sidewalk for local residents"; CSX failed to properly train its agents and officers in order to protect the integrity of evidence in the event of an accident, specifically locomotive video equipment, downloadable event recorder information, and audio recordings; CSX failed to properly dispatch personnel, gather and protect evidence, and document the accident scene; and, CSX failed to ensure that its operating personnel, including train and engine service crews, comply with the operating rules, safety rules, and other issued special instructions, notices, and bulletins. (Id. at 10–11).

As noted above, in light of the Court's decision on defendants' motion for summary judgment, the only claims that remain in this matter are for failure to warn by sounding a horn or bell prior to moving the train car and for failure to post appropriate warning signage in the Lyons yard. (Docket # 90 at 26–27). Moody's counsel acknowledged at oral argument that Timko's opinions unrelated to these two claims are no longer relevant. Accordingly, the Court has limited its recitation of the facts to those relevant to the remaining claims.

Timko was deposed on November 17, 2015. (Docket # 65–3). Timko testified that in order to prepare his report, he spent several hours reviewing materials related to this case, including photographs, police reports, maps, and statements regarding the accident scene, and that he performed an inspection at the Lyons yard on January 17, 2015. (Id. at 83–87). According to Timko, his inspection of the Lyons yard occurred from public property, and he did not enter railroad property at any time. (Id. at 85–86).

Timko testified that CSX had a "lackadaisical attitude toward public safety" at the Lyons yard and that despite having received numerous reports of pedestrians in the yard (prompting the CSX Police Department to refer to the Lyons yard as a "public sidewalk"), CSX took no action to address the issue. (Id. at 106). According to Timko, when he visited the Lyons yard, he observed footprints in the snow and individuals walking through the yard, with nobody policing the station. (Id. at 106–07). He testified that he saw an adult man walk across the track. (Id. at 107–08).

Timko objected to the characterization of pedestrians in the Lyons yard as "trespassers," explaining that "you can't be a trespasser unless it's posted." (Id. at 126). Because there were no "No Trespassing" signs posted at the Lyons yard, Timko opined that pedestrians had no way of knowing they were not permitted to cross, and Moody was therefore not trespassing at the time of her accident. (Id. at 127–28). Timko later acknowledged, however, that he did not know whether there were "No Trespassing" signs posted and stated that his opinion would be the same whether there were "some or none or lots" of such signs. (Id. at 130–31). Timko stated that it was necessary, in addition to posting signs, to educate people about the dangers because it is impossible to fence in the entire right-of-way. (Id. at 131–32). Timko further testified that CSX could have posted signs in the Lyons yard stating, "No Access," "Use Bridge," "Use Route 14 Bridge," "Private Property," "Dangerous," "High Speed Trains," or similar warnings. (Id. at 155–56). Timko continued that CSX could have posted a sign saying "Dangerous area, Do not enter tracks" or "any kind of signage you want to put up there." (Id. at 157). Timko elaborated that the warning signs "could have said something like, ‘dangerous, high-speed traffic area—high speed trains’ " and that CSX "needed to do some education." (Id. at 159). Timko also opined that, in his experience, it was standard practice in the railroad industry to put up signs posting private property. (Id. at 142–43).

Timko also submitted an affidavit dated April 1, 2016, in opposition to defendants' motion. (Docket # 69–5). In his affidavit, Timko alleges that the answers he gave at his deposition do not represent his full and complete opinions. (Id. at ¶ 2). Timko states that on June 15–16, 2006, good and accepted standards of practice required defendants to sound the train horn and bell just prior to moving the train and that defendants' failure to do so was a deviation from such good and accepted standards of practice. (Id. at ¶¶ 3, 5). Timko further states that CSX is a full member of the Northeast Operating Rules Advisory Committee ("NORAC") and attaches for the Court's review a copy of the NORAC operating rules that were in place on June 15–16, 2006. (Id. at ¶¶ 6–7, Ex. A). Timko explains that NORAC operating rules 19 and 20 required the locomotive engine bell and horn to be sounded before train movement and that defendants' internal rules imposed a similar requirement. (Id. at ¶¶ 9–10). Timko also opines that good and accepted standards of practice required defendants to post signs in and around the Lyons yard stating, e.g. , "No Trespassing," "Private Property," and "Danger," in order "to serve as a warning to pedestrians about dangers in the Yard that they may not appreciate." (Id. at ¶ 16).

B. The Parties' Positions

Defendants ask the Court to exclude Timko's opinions and testimony in their entirety. (Docket # 65–4 at 1–2). Defendants contend that Timko's opinions, by his own admissions, are based on "nothing more than his review of litigation documents, an internet search and observations he was able to make while seated briefly in his car parked off railroad property on a cold...