United Transportation Union v. Birmingham Southern Railroad et al

Filing 80

MEMORANDUM OPINION re Motion in Limine 57 . Signed by Judge Sharon Lovelace Blackburn on 3/31/14. (CTS, )

FILED
2014 Mar-31 AM 08:01
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED
UNION,

TRANSPORTATION

Plaintiff,
vs.
BIRMINGHAM SOUTHERN
RAILROAD COMPANY; TRANSTAR,
INC.,
Defendants.
BIRMINGHAM SOUTHERN
RAILROAD COMPANY,
Counter Claimant,
vs.
UNITED TRANSPORTATION
UNION; CAROL J. ZAMPERINI,
Counter Defendants.

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CASE NO. 2:11-CV-4128-SLB

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MEMORANDUM OPINION
This case is presently pending before the court on the Motion in Limine to Exclude
the Report and Opinion of George Frederick Leif filed by plaintiff/counter defendant United
Transportation Union [UTU].

(Doc. 57.)1

Defendant/counter claimant Birmingham

Southern Railroad [BSR] identified Leif as an expert by virtue of his “extensive work

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Reference to a document number, [“Doc. ___”], refers to the number assigned to
each document as it is filed in the court’s record.

experience in the field of railroad arbitration and, more generally, railroad dispute
resolution.” (Doc. 67 at 7.) Mr. Lief opined in part:
In my opinion Chairwoman Zamperini engaged in and allowed the United
Transportation Union officers and representatives to engage in inappropriate
and impermissible ex parte communication. Ms. Zamperini’s participation in
these communications clearly failed to follow the well known standards of
conduct for neutral arbitrators in the railroad industry.
Doc. 58-1 at 7.
Ex parte communication on matters of substance associated with cases before
or under consideration by an RLA arbitration board is universally considered
inappropriate and unethical behavior.
Id. at 8.
In this case, when Chairwoman Zamperini engaged in and allowed ex parte
communication with the UTU’s designated Board member and with UTU
representatives Brodar and Previsich, without knowledge of or advice to BSR,
her actions constituted a serious breach of the standards of conduct that apply
to arbitrators and other persons serving in a neutral position in labormanagement disputes.
Id. at 9.
UTU has moved to exclude Leif’s testimony as not meeting the standards of Fed. R.
Evid. 702. (Doc. 58 at 1.) Upon consideration of the record, the submissions of the parties,
and the relevant law, the court is of the opinion that UTU’s Motion in Limine to Exclude the
Report and Opinion and George Frederick Leif, (doc. 57), is due to be granted.
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules
of Evidence, which provides

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A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
Fed. R. Evid. 702. This rule was amended to its present form as a result of the Supreme
Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., which held that a trial
court confronted with expert scientific testimony must determine “whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to
understand or determine a fact in issue.” Daubert, 509 U.S. 579, 592 (1993). The first of
these issues is a question of reliability, the second of relevance. See id. at 590-91; see also
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)(setting forth
a three part test: (1) whether the expert is qualified; (2) whether the methodology he uses to
reach his conclusion is reliable; and (3) whether the testimony will assist the trier of fact to
understand the evidence or determine a fact at issue).
Assuming without deciding that parts (1) and (2) of the above three part test are
satisfied, the court has determined that Mr. Lief’s testimony is inadmissible because it will
not assist the trier of fact to understand the evidence or determine a fact in issue.

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As to consideration of the relevance of the expert’s testimony, the Court stated:
Rule 702 further requires that the evidence or testimony “assist the trier
of fact to understand the evidence or to determine a fact in issue.” This
condition goes primarily to relevance. Expert testimony which does not relate
to any issue in the case is not relevant and, ergo, non-helpful. The
consideration has been aptly described . . . as one of “fit.” “Fit” is not always
obvious, and scientific validity for one purpose is not necessarily scientific
validity for other, unrelated purposes. The study of the phases of the moon, for
example, may provide valid scientific “knowledge” about whether a certain
night was dark, and if darkness is a fact in issue, the knowledge will assist the
trier of fact. However (absent creditable grounds supporting such a link),
evidence that the moon was full on a certain night will not assist the trier of
fact in determining whether an individual was unusually likely to have
behaved irrationally on that night. Rule 702’s “helpfulness” standard requires
a valid scientific connection to the pertinent inquiry as a precondition to
admissibility.
Id. at 591-92(internal citations omitted). “By this requirement, expert testimony is admissible
if it concerns matters that are beyond the understanding of the average lay person.” United
States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004)(citing United States v. Rouco, 765
F.2d 983, 995 (11th Cir. 1985)). Also, and as particularly important here, “An expert may
not . . . testify to the legal implications of conduct . . . .” Nicholson v. McCabe, No.
CV-02-H-1107-S, 2003 WL 25676474, *1 (N.D. Ala. June 2, 2003)(citing Montgomery v.
Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)). Indeed, the Eleventh Circuit
has held that “[p]roffered expert testimony generally will not help the trier of fact when it
offers nothing more than what lawyers for the parties can argue in closing arguments.”
Frazier, 387 F.3d at 1262-63 (citation omitted). Therefore, “an expert’s testimony is
inadmissible if the trier of fact is entirely capable of determining whether or not to draw the

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expert’s conclusions without any technical assistance from the expert. Alabama Gas Corp.
v. Travelers Caves. and Sur. Co., No. CV-10-J-1840-S, 2011 WL 10525703, *2 (N.D. Ala.
Dec. 12, 2011)(quoting City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 565
(11th Cir.1998))(internal quotations omitted).
The crux of Leif’s opinion can be summed up in this statement:
In my opinion, Chairwoman Zamperini engaged in and allowed [UTU] officers
and representatives to engage in inappropriate and impermissible ex parte
communication. Ms. Zamperini’s participation in these communications
clearly failed to follow the well[-]known standards of conduct for neutral
arbitrators in the railroad industry.
(Doc. 58-1 at 10.) He contends that “[e]x parte communication on matters of substance
associated with cases before or under consideration by an RLA arbitration board is
universally considered inappropriate and unethical behavior. The National Academy Code
is understood to prohibit the type of ex parte communication engaged in and permitted by
Ms. Zamperini.” (Id. at 8.) These opinions do little more than tell the fact finder what
conclusion to draw from the facts.2 As such Lief’s expert opinion testimony is not
admissible.3

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In other words, a fact finder could look at the rules applicable to neutral arbitrators
and determine whether Ms. Zamperini’s conduct violated those rules.
3

The court notes that this decision is contrary to the court’s statement at oral argument
that it intended to deny UTU’s Motion in Limine. However, after careful consideration of
Lief’s Report and his deposition testimony, the court has determined that Lief’s testimony
is not admissible for the grounds set forth herein.
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Therefore, the court will grant UTU’s Motion in Limine to Exclude Lief’s opinion
testimony. The court has not considered Lief’s testimony in deciding the parties’ Motions
for Summary Judgment.
DONE, this 31st day of March, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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