Colon et al v. Metro-North Commuter Railroad Company et al

Filing 453

RULING DENYING MOTION IN LIMINE TO PRECLUDE ANY EXPERT TESTIMONY THAT U.I.'S TRANSMISSION SYSTEM CAUSED A SENSATION IN MR. COLON AND/OR THAT IT DIRECTLY OR INDIRECTLY CAUSED HIS FALL. For the reasons stated in the attached ruling, UI's moti on in limine (Doc. # 316 ) is DENIED. Dr. Stern will be permitted to testify concerning his opinions about what caused any electrical shock to plaintiff Colon, including his views concerning the likelihood or probability that UI's wires caused or contributed to any electric shock/sensation experienced by Colon. It is so ordered. Signed by Judge Jeffrey A. Meyer on 8/9/2017. (Black, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MILTON OMAR COLON and ARLENE
DAVIS,
Plaintiffs,
v.
METRO-NORTH COMMUTER
RAILROAD COMPANY, and
METROPOLITAN TRANSPORTATION
AUTHORITY,
Defendants,

No. 3:13-cv-00325 (JAM)

v.
UNITED ILLUMINATING COMPANY,
Third-Party Defendant.

RULING DENYING MOTION IN LIMINE TO PRECLUDE ANY EXPERT
TESTIMONY THAT U.I.’S TRANSMISSION SYSTEM CAUSED A SENSATION IN
MR. COLON AND/OR THAT IT DIRECTLY OR INDIRECTLY CAUSED HIS FALL
The United Illuminating Company (“UI”), the third-party defendant in this case, has filed
a motion in limine to preclude any expert testimony that UI’s transmission system caused a
sensation in Mr. Colon and/or that it directly or indirectly caused his fall. See Doc. #316. I will
deny the motion to the extent that it would preclude the expert testimony of Dr. Elliot Stern with
respect to matters that are within the scope of his reports and deposition testimony in this matter
concerning the potential causal and contributory role of UI’s wires.
BACKGROUND
Plaintiff Omar Colon suffered severe electrocution injuries after he climbed up a catenary
pole along the electrified Metro-North railroad tracks in Connecticut. The factual background of
this case of has been described in detail in the Court’s ruling on motions for summary judgment.

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See Colon v. Metro-N. Commuter R.R. Co., -- F. Supp. 3d --, 2017 WL 987844 (D. Conn. 2017).
For present purposes, the key facts as claimed by plaintiffs are (1) that Colon climbed high up a
catenary tower along the Metro-North railroad tracks; (2) that the catenary tower carried not only
Metro-North’s electric lines at a lower level but also UI’s higher-voltage electric lines at a higher
level; (3) that Colon allegedly lost his balance as a result of some kind of surprise static, corona,
or arc electrical shock sensation at a time when he was not physically touching but was closer to
the Metro-North wires than the UI wires; and (4) that this initial shock/sensation led to Colon
falling down onto Metro-North’s wires and to him suffering severe electrocution and burns
before he could be rescued.
Plaintiffs Omar Colon and Arlene Davis have filed this lawsuit against defendants Metro
North Commuter Railroad Company (“Metro-North”) and the Metropolitan Transportation
Authority (“MTA”). The defendants in turn have filed a third-party complaint for contractual
indemnification against UI.
On January 30, 2015, as part of the discovery process, plaintiffs filed an expert disclosure
listing and designating their planned expert witnesses. Doc. #316-2. This disclosure listed Elliot
Stern, Ph.D., a forensic engineer, and stated that Dr. Stern would testify, among other things, to
“an accident reconstruction of the subject March 17 incident in which the Plaintiff was injured
and the manner in which Plaintiff was shocked and fell on the power lines/signal wires,” and “in
regard to electricity and high-voltage arc/static shock and regarding the propensity of highvoltage lines to energize air structures and conductors (including humans) nearby or connected to
Defendant’s high-voltage lines.” Id. at 3-4.
On February 25, 2015, Dr. Stern filed his expert report, containing his reconstruction of
the accident. The report concluded that, based on Colon’s account of the incident, he had been

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“quite close to the bridle wire for the U.I. 115 kV conductor as well as immediately adjacent to
the Metro-North 13.2kV line and insulators.” Doc. #316-3 at 4. The report concluded that the
direct cause of the accident was Colon’s “exposure to high-voltage energy lines without effective
hazard control.” Id. at 5. Dr. Stern later sat for a deposition, at which he was questioned by
lawyers representing Metro-North, the MTA, and UI. At that deposition, Dr. Stern stated that,
while he had not done precise calculations on the matter, it was “more likely than not” that the
shock would have been caused by the higher voltage line, i.e. UI’s wires. Doc. #316-4 at 6-7, 9.
In anticipation of trial, UI moved in limine to exclude “any expert evidence that UI’s
transmission system caused a sensation in Mr. Colon and/or that it directly or indirectly caused
his fall,” on the grounds that any such testimony had not been properly disclosed as required by
Rules 26(a)(2) and 37(c)(1). Doc. #316 at 1, 6-7. UI also claims that Dr. Stern’s opinions
concerning whose wires caused the accident are inadmissible because they are impermissibly
speculative. Id. at 11-13.
DISCUSSION
The Expert Disclosure Rules
Federal Rule of Civil Procedure 26(a)(2)(A) states that “a party must disclose to the other
parties the identity of any witness it may use at trial to present evidence under Federal Rule of
Evidence 702, 703, or 705,” the rules governing expert testimony. Any witness “retained or
specially employed to provide expert testimony in the case or one whose duties as the party’s
employee regularly involve giving expert testimony” must also provide a written report to be
included in this disclosure. Fed. R. Civ. P. 26(a)(2)(B). These requirements are enforced by Rule
37(c)(1), which states that “[i]f a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness to

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supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified
or is harmless.”
UI correctly notes that, under Rules 26(a)(2) and 37(c)(1), courts will not permit experts
to testify to matters beyond the scope of their expert disclosure. See generally 8A Fed. Prac. &
Proc. Civ. § 2031.1 (3d ed.) (“One particular problem has arisen when experts seek to offer new
information or theories not included in their reports, even assuming those were adequate when
initially served. Rule 37(c)(1) calls for exclusion of information that should have been revealed
but was not. Courts have frequently excluded proffered expert testimony under this rule, most
often in connection with trial, but also on motions for summary judgment.”)
Here it is clear to me that Dr. Stern’s opinions regarding the possibility that UI’s wires
caused plaintiff Colon’s accident were within the scope of his disclosure and adequately
disclosed. The initial expert disclosure filed by plaintiffs stated that he would testify to a
reconstruction of the accident. His expert report contained this reconstruction, and included his
opinion regarding Colon’s position with respect to both UI’s and Metro-North’s wires, as well as
his conclusion that the direct cause of the accident was Colon’s exposure to “high-voltage energy
lines,” plural. Doc. #316-3 at 5 (emphasis added). I think these disclosures put UI on notice that
Dr. Stern could testify that UI’s wires had played some causal role in the accident, as UI’s
counsel then questioned him about that topic at his deposition. Doc. #316-4 at 6-11.
It is true that Dr. Stern’s report (as distinct from his later deposition) did not offer a
further explicit conclusion that it was more likely than not that it was UI’s wires that led to the
initial electric shock. This assessment of a probability that it was UI’s wires emerged only during
Dr. Stern’s deposition. I conclude that Dr. Stern may permissibly address on questioning by
Metro-North and the MTA what potential role he believes UI’s wires had in creating the initial

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electric shock because it would not otherwise be possible for Metro-North and the MTA to
challenge Dr. Stern’s testimony and for Dr. Stern to explain and substantiate his overall
conclusions that Colon was subject to some form of static or arc electric shock if he is unable to
comment upon the individual contributory components. Dr. Stern’s conclusions concerning UI’s
wires are within the necessary scope of his report and conclusions, and I conclude that UI has
received adequate notice of Dr. Stern’s conclusions.
It is true that defendants Metro-North and MTA themselves made no expert disclosures
in this case, and therefore according to the terms of Rule 37 should not be allowed to “use” Dr.
Stern’s testimony at all. But Dr. Stern’s testimony concerning the role played by UI’s wires is
not just relevant to defendants’ third-party claims against UI. It is also directly relevant to
plaintiffs’ own claims against Metro-North and MTA. In order to prove their claims, after all,
plaintiffs must establish that Colon was in fact struck by some kind of electric shock when he
climbed up the catenary tower. If on the other hand he simply bumped his head on a beam, or
lost his balance, or deliberately jumped off the tower, he would not be entitled to recover. And
for the purposes of plaintiff’s claim against Metro-North and the MTA, it does not matter which
set of wires caused the shock, only that the wires as a whole did cause a shock. Therefore, any
evidence tending to show that either or both sets of wires caused an electric shock that struck
plaintiff while he was up the tower is highly probative to plaintiff’s case. Plaintiff is certainly
entitled to use Dr. Stern’s testimony on this matter, which was properly disclosed under Rule
26(a)(2), against defendants. And defendants Metro-North and MTA in turn are entitled to
defend against these allegations by probing Dr. Stern’s testimony. This is not “using” the
testimony of an expert they did not disclose, but rather attempting to prevent an opposing party
from making effective use of that expert against them.

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Accordingly, the Court will not prevent testimony from Dr. Stern about how the wires or
a combination of all the wires may have caused or contributed to plaintiff’s injuries. Defendants
Metro-North and MTA may then cross-examine Dr. Stern on any matter within the scope of his
report and his deposition testimony, including any of Dr. Stern’s views concerning the likelihood
or probability that UI’s wires caused any electric shock of plaintiff.
The Admissibility of Dr. Stern’s Opinions
UI also argues that, even if Dr. Stern’s testimony should not be barred under Rule
37(c)(1), it is inadmissible under Federal Rule of Evidence 702 because it is mere speculation.
Doc. #316 at 11-13. This argument, I think, misapprehends what is meant by the rule against
“speculative or conjectural” expert opinions. See, e.g., Boucher v. U.S. Suzuki Motor Corp., 73
F.3d 18, 21 (2d Cir. 1996). This principle does not, and hardly could, require that any opinion
given by an expert at trial be given with complete confidence, or that every expert express
complete certainty about what happened in a given case. Such certainty, indeed, may often
rightly be considered a sign of non-rigorous, unscientific thinking. See, e.g., Nate Silver, The
Signal and the Noise: Why So Many Predictions Fail—But Some Don’t 73 (Paperback ed., 2015)
(“You will need to learn how to express—and quantify—the uncertainty in your predictions. . . .
The more willing you are to do these things, the more capable you will be of evaluating a wide
variety of information without abusing it.”).
Rather, the focus of the rules governing expert testimony is “solely on principles and
methodology, not on the conclusions that they generate.” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993). In other words, it is perfectly acceptable for an
expert to conclude, based on sound scientific principles and methods, that X is more likely to
have happened than Y, but that he cannot be certain. Certainly in a civil action where the

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plaintiffs need only prove their case by a preponderance of the evidence, i.e. show that their
account of the facts is more likely than not to be true, it would be anomalous to exclude an
expert’s testimony that a certain factual account is more likely true than not simply because they
could not be more certain. A frank acknowledgement of this uncertainty may even provide
reassurance that the expert has stayed within the realm of sound inference and has not taken
unfounded speculative leaps.
That is precisely what we have in this case. Dr. Stern testified that “because of the field
effects and potential discharge and charging of the air is related to voltage, there is a higher
likelihood that the higher voltage line would generate more of an effect.” Doc. #316-4 at 9. This
was based on his reconstruction of the physical relationship among Colon and the various sets of
wires, as best he could determine from Colon’s imprecise account of the incident. Id. at 8-9. In
context, Dr. Stern’s negative responses to UI’s questions asking him whether he could state this
or that with “reasonable scientific certainty,” id. at 6-9, are most naturally read as statements that
he cannot be certain which set of wires caused the electric shock, not as an admission that his
opinion did not rest on sound, certain scientific principles. I see no reason why an opinion
applying “the general physical characteristics of voltage,” id. at 9, to plaintiff’s somewhat hazy
account of the incident to generate a rough probability as to the cause of the accident should be
excluded from evidence.
CONCLUSION
For the foregoing reasons, UI’s motion in limine (Doc. #316) is DENIED. Dr. Stern will
be permitted to testify concerning his opinions about what caused any electrical shock to plaintiff
Colon, including his views concerning the likelihood or probability that UI’s wires caused or
contributed to any electric shock/sensation experienced by Colon.

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It is so ordered.
Dated at New Haven this 9th day of August 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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