Smelser v. Norfolk Southern Ry. Co.

• Decision Date: 07 March 1997
• Docket Number: Nos. 95-3489,95-3529,s. 95-3489
• Citation: 105 F.3d 299
• Parties: 46 Fed. R. Evid. Serv. 468 Claude I. SMELSER, Plaintiff-Appellee, Cross-Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant, Norfolk and Western Railway Company, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 299

105 F.3d 299

46 Fed. R. Evid. Serv. 468

Claude I. SMELSER, Plaintiff-Appellee, Cross-Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant Norfolk and Western Railway Company, Defendant-Appellant Cross-Appellee.

Nos. 95-3489, 95-3529.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 26, 1996.

Decided Jan. 27, 1997.

Rehearing and Suggestion for Rehearing

En Banc Denied March 7, 1997.

Michael A. Kennedy (argued and briefed), Batavia, OH, for plaintiff-appellee, cross-appellant.

James F. Brockman (argued and briefed), Lindhorst & Dreidame, Cincinnati, OH, for defendant-appellant, cross-appellee.

Before: NORRIS and COLE, Circuit Judges; EDMUNDS, District Judge. ^*

EDMUNDS, District Judge.

Defendant, Norfolk & Western Railway Co. ("Norfolk"), appeals from the judgment entered against it after a jury verdict in an action for negligence brought pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51, et seq. Plaintiff, Claude Smelser, brought suit against his employer, Norfolk, for injuries sustained when the company pick-up truck he was driving to a job site was hit in the rear by another motorist. Smelser alleged that the company truck had a defective safety belt which caused the injuries to his back and aggravated his neck injuries. The jury awarded Smelser $3.5 million compensatory damages, but the trial court remitted the judgment to $1,668,000. Norfolk appeals, arguing it is entitled to judgment as a matter of law in its favor, or in the alternative, a new trial. Smelser cross-appeals asserting that the trial court's remittitur decision was in error and should be reversed.

We conclude that the trial court erred when it allowed Smelser's expert, Ronald Huston, to offer his opinion that a defective shoulder belt in the company pick-up truck, and not the rear-end collision, caused Smelser's back injuries and aggravated his neck injuries. The court did not adequately assess the reliability of the methodology underlying Dr. Huston's opinions both as to defect and causation and also failed to recognize that Dr. Huston's opinion as to the cause of Smelser's specific injuries went beyond his expertise in biomechanics. Accordingly, it failed to adequately perform its gatekeeping functions as recently defined by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court further erred when it denied Norfolk's motion for a directed verdict because, without Dr. Huston's improper testimony, there is not a scintilla of evidence that a defective shoulder belt, and not the rear-end collision, caused or aggravated Smelser's injuries. Therefore, we REVERSE the judgment against Norfolk. The case is REMANDED for an entry of judgment as a matter of law in favor of Norfolk. Fed.R.Civ.P. 50(a).

I.

Smelser, a 53-year old Norfolk employee, was injured on August 29, 1989 when the company pick-up truck he was driving to a job site was rear-ended by another motorist traveling at approximately 45 m.p.h. Smelser testified that on impact, his head snapped back and hit the rear window of the truck cab, then his upper body moved forward and to the left; he ended up down in between the steering wheel and the door, and his left knee hit the floorboard.

Smelser subsequently sued Norfolk under FELA, alleging that Norfolk negligently failed to maintain the shoulder belt of the company truck he was driving and that this negligence caused his back injuries and aggravated his neck injuries which were initially caused by the rear-end collision. ¹ Smelser claimed he was permanently disabled and could no longer perform his job; he sought damages for lost wages and benefits, medical expenses, pain and suffering, and the lost capacity to enjoy the pleasures of life. Smelser also filed suit against the driver of the other vehicle involved in the August 1989 accident, seeking damages for the same injuries alleged in this suit. That suit was filed in the Ohio Court of Claims because the driver was an agent of the State of Ohio.

The pick-up truck Smelser was driving on August 29, 1989 was involved in an accident two months earlier in June of 1989. Smelser, the driver, testified that in the June accident his safety belt held him in place and left some marks on his neck and shoulder. He reported the accident to his supervisor and showed the marks to another supervisor. Although Smelser complained of soreness to his neck, he did not miss any work and did not file a claim for his injuries. He drove the truck for a while after the June 1989 accident, but the damage to the truck was repaired before the August 29, 1996 accident. The seat belt was not repaired or replaced. The owner's manual provides that the seat belt should be replaced if damaged or involved in "all but a minor collision."

Smelser's FELA action went to trial, and, after the trial court denied Norfolk's motion in limine challenging the admissibility of Dr. Huston's expert testimony, and its motions for judgment as a matter of law at the close of Smelser's case and again at the close of the entire case, the matter was submitted to the jury. The jury returned a verdict in favor of Smelser in the amount of $3.5 million. Norfolk then filed a motion for judgment as a matter or law and/or a motion for a new trial pursuant to Fed.R.Civ.P. 50 and 59. It also filed a motion for an order of remittitur. The trial court denied Norfolk's motion for judgment as a matter of law and its motion for a new trial, but granted its motion for an order of remittitur. Judgment was entered on March 31, 1995 reducing the verdict to $1,668,000.

II.

A. Admissibility of Expert Testimony Under Fed.R.Evid. 702

At trial, Smelser called Dr. Ronald Huston, a biomechanical engineer, to testify as an expert, and he rendered an opinion that (1) the shoulder belt, but not the lap belt, in the company truck was defective, (2) these circumstances worked together to cause Smelser's body to jackknife at the waist, and (3) the defective shoulder belt, not the rear-end collision, caused Smelser's back injuries and aggravated the neck injuries which were initially caused by the rear-end collision. Norfolk does not object to Dr. Huston's qualifications to testify as a biomechanical engineer. Rather, Norfolk argues that Huston's opinion testimony should have been excluded because the methodology underlying his opinions on defect and causation is unreliable, and his opinion on causation goes beyond his expertise in biomechanics. We agree.

"The Federal Rules of Evidence require a judge to undertake 'a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.' " Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 186-87 (7th Cir.1993) (quoting Daubert, 509 U.S. at 592-593, 113 S.Ct. at 2796-97). Had the trial court adequately performed its gatekeeping functions as set forth in Daubert, Huston's expert testimony would not have been admitted into evidence.

1. Standard of Review

In Cook v. American Steamship Co., 53 F.3d 733, 738 (6th Cir.1995), this court set forth the standard of review to be used when examining a trial court's rulings on the admissibility of expert testimony under Fed.R.Evid. 702. Preliminary factfinding under Fed.R.Evid. 104(a), e.g., a finding that the witness is qualified to testify as an expert on a certain subject, is reviewed for clear error. Id. We review de novo the trial court's determination "whether the opinion the expert wishes to offer is properly the subject of 'scientific, technical, or other specialized knowledge' " and this includes its "determination whether 'the reasoning or methodology underlying the testimony is scientifically valid.' " Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796). ² The party seeking to have the testimony admitted bears the burden of showing "that the expert's findings are based on sound science, and this will require some objective, independent validation of the expert's methodology"; "the expert's bald assurance of validity is not enough." Daubert v. Merrell Dow Pharmaceuticals, Inc., (on Remand), 43 F.3d 1311, 1316 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995).

2. The Trial Court's "Gatekeeping" Function

The trial court is required under Fed.R.Evid. 104(a) to answer preliminary questions regarding the admissibility of expert testimony under Fed.R.Evid. 702. The Supreme Court in Daubert clarified that a trial court, when performing this gatekeeping function, must use a two-step inquiry which examines the expert's opinion testimony for reliability and relevance. Cook, 53 F.3d at 737-38. First, the court is to determine "whether the experts' testimony reflects 'scientific knowledge,' whether their findings are 'derived by the scientific method,' and whether their work product amounts to 'good science.' " Daubert (on Remand), 43 F.3d at 1315 (quoting Daubert, 509 U.S. at 590, 593, 113 S.Ct. at 2795, 2797). An expert opinion that is based on scientifically valid principles will satisfy Fed.R.Evid. 702; an expert's subjective belief or unsupported speculation will not. Daubert (on Remand), 43 F.3d at 1316.

Second, the court "must ensure that the proposed expert testimony is relevant to the task at hand." Id. at 1315. The Supreme Court referred to this as the "fit" requirement. Id. When making a preliminary finding regarding an expert's qualifications under Fed.R.Evid. 104(a), the court is to examine "not the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question." Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir.1994), cert. denied, 513 U.S. 1111, 115 S.Ct. 902, 130 L.Ed.2d 786 (1995). The trial court must determine whether the expert's training and qualifications relate...