Montgomery v. CSX Tranportation, Inc.

Filing 133

MEMORANDUM. Signed by Magistrate Judge Stephanie A Gallagher on 1/19/2017. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

LOU MONTGOMERY, et al.,
Plaintiffs,
v.
CSX TRANSPORTATION, INC., et al.
Defendants.

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Case No. SAG-14-1520

MEMORANDUM
Following a workplace accident involving a tool cart, Plaintiffs Lou Montgomery and
Melissa Montgomery filed this lawsuit against the cart’s manufacturer, Jamco Products, Inc.
(“Jamco”), and Mr. Montgomery’s employer, CSX Transportation, Inc. (“CSXT”).

Now

pending is Defendant CSXT’s Motion to Exclude Expert Testimony and Motion for Summary
Judgment [ECF No. 120]. I have considered that motion, the materials submitted relating
thereto, and the oral arguments presented at a hearing on January 11, 2017.1

See Local Rule

105.6 (D. Md. 2016). For the reasons set forth below, CSXT’s motion will be granted.
I.

FACTUAL BACKGROUND
On October 5, 2013, Mr. Montgomery was working as a machinist for CSXT in its shop

in Cumberland, Maryland (“Cumberland shop”). Montgomery Dep., 43:6-12. Mr. Montgomery
had been employed as a CSXT machinist for approximately nine years. Id. at 33:4-6. During

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In addition to the customary opposition [ECF No. 121, 122] and reply [ECF No. 124] filed by the parties, Plaintiffs
filed a “sur response,” [ECF No. 129] and CSXT filed an “opposition to the Court’s consideration of the Plaintiffs’
sur response, or, in the alternative, a response to Plaintiff[s’] sur response.” [ECF No. 130]. I have considered all of
those filings in adjudicating this motion.

all nine years, various tool carts were used by the machinists in the Cumberland shop. Id. at
166:2-4. The tool carts were not all identical. Id. at 71:2-8.
On the date of the accident, Mr. Montgomery was assigned to repair a diesel locomotive.
Id. 77:18-78:16. In order to transport his tools to the locomotive, Mr. Montgomery found a tool
cart and pushed it approximately 70 yards to the tool room. He placed a fuel injector on top of
the cart and then pushed the tool cart another 100 yards or so to his tool locker. He went into his
tool locker, retrieved a small black toolbox weighing 10 or 15 pounds, and placed it on the cart.
He then went to pick up a second toolbox weighing approximately 70 to 75 pounds and set in on
the cart but, when he did, the cart broke. Mr. Montgomery was jerked forward from the weight
of the toolbox, and severely injured his back. Id. at 79:15-90:12, 91:20-24.
CSXT’s safety rules require employees to inspect all tools and equipment for unsafe
conditions before use. Id. at 87:21-24, 153:5-19. Mr. Montgomery looked at the cart before
using it “and it appeared to be fine.” Id. at 87:8-89:10. He did not notice any cracks on the cart.
Id.
Another CSXT employee, Mike Kennell, worked as a boilermaker in the Cumberland
shop. Kennell Dep. 7:1-4. Kennell testified that he recalled making repairs to some tool carts
prior to Mr. Montgomery’s accident, but he could not recall how many carts he had repaired,
when the repairs were made, or whether the carts he repaired were Jamco carts. Id. at 14:2116:9, 20:12-15. At the time of the accident, the original welds on the tool cart used by Mr.
Montgomery had not been altered or repaired. Clauser Dep. 57:18-58:6.
Mr. Montgomery and his wife filed the instant lawsuit against the manufacturer of the
cart, Jamco, under a theory of manufacturing defect, and against CSXT, alleging negligence in
violation of the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51, et seq. See [ECF

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Nos. 1 and 60]. Specifically, Plaintiffs allege that CSXT failed to provide Mr. Montgomery a
reasonably safe place to work. See [ECF No. 60]; Pls.’ Opp., [ECF No. 122 at 17-20].
CSXT now seeks to exclude the testimony of Plaintiffs’ liability expert pursuant to Rule
702 of the Federal Rules of Evidence, and seeks summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure.
II.

EXPERT TESTIMONY
Plaintiffs have retained Craig Clauser, P.E., as their liability expert.

By Plaintiffs’

description, Mr. Clauser is “an expert metallurgist with a secondary expertise in industrial safety
and quality control.” Pls.’ Opp., [ECF No. 122 at 7].
Contrary to Plaintiffs’ claim, this Court has not previously ruled that Mr. Clauser’s
opinion meets all requirements of Federal Rules of Evidence 702 and 703. Id. at 1. Rather, the
Court’s prior inquiry was limited to determining whether Mr. Clauser’s expert reports and
testimony violated 1) the timely disclosure requirement of Federal Rule of Civil Procedure
26(a)(2) and 2) the reliability requirement of Federal Rules of Evidence 702 and 703.
Montgomery v. CSX Transp., Inc., 2016 WL 5390809 (D. Md. Sept. 27, 2016) (denying CSXT’s
motion to strike Mr. Clauser’s opinion on the above-stated bases). The instant motion challenges
Mr. Clauser’s qualifications as an expert and the foundational basis of his opinion as to CSXT’s
liability.2
a. Legal Standard
A witness may be qualified as an expert “by knowledge, skill, experience, training, or
education.” Fed. R. Evid. 702. Expert testimony is admissible if it will assist the trier of fact,
and: (1) is “based on sufficient facts or data;” (2) is “the product of reliable principles and
methods;” and (3) the principles and methods have been applied “reliably...to the facts of the

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The instant motion has no bearing on Mr. Clauser’s qualifications to testify as an expert against Jamco.

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case.” Id. The expert testimony also must rest on a reliable foundation and must be relevant.
Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993); see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999) (extending Daubert to “the testimony of...other experts who
are not scientists”). Where experiential expert testimony “does not rely on anything like a
scientific method,” it is nevertheless admissible “so long as an experiential witness ‘explain[s]
how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis
for the opinion, and how [his] experience is reliably applied to the facts.’” United States v.
Bynum, 604 F.3d 161, 167 (4th Cir. 2010) (alterations in original) (citations omitted).
The Court’s inquiry into the reliability of an expert’s testimony is “flexible,” and focuses
on “the principles and methodology employed by the expert.” Daubert, 509 U.S. at 594-95.
Holesapple v. Barrett, 5 F. App’x 177, 179 (4th Cir. 2001). In determining whether proffered
testimony is sufficiently reliable, “the court has broad latitude to consider whatever factors
bearing on validity the court finds to be useful; the particular factors will depend on the unique
circumstances of the expert testimony involved.” Id. Neither Daubert nor the Federal Rules of
Evidence obligate a trial court “to admit opinion evidence that is [based merely on] the ipse dixit
of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Rather, “[r]eliability is to be
determined by the ‘principles and methodology’ employed by the expert.” Holesapple v. Barrett,
5 F. App’x 177, 179 (4th Cir. 2001). Indeed, “[t]he Court must exclude expert testimony if it is
so fundamentally unreliable that it can offer no assistance to the jury.” Goyal v. Thermage, Inc.,
2011 WL 691185, at *3 n.8 (D. Md. Feb. 18, 2011) (quoting Meterlogic, Inc. v. KLT, Inc., 368
F.3d 1017, 1019 (8th Cir. 2004)).

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b. Discussion
i. Mr. Clauser’s Opinion
Mr. Clauser authored three reports regarding CSXT’s liability for Mr. Montgomery’s
injuries – dated June 22, 2015 (“first report”), October 19, 2015 (“supplemental report”), and
May 6, 2016 (“rebuttal report”), respectively. Clauser’s Reports, [ECF No. 121-2 at Ex. B]. In
the first report, Mr. Clauser opined that, “CSX Transportation failed to provide a reasonably safe
work place for their employees. Once they became aware that the welds on the subject Jamco
carts were defective and needed weld repairing, CSX should have removed all of the Jamco carts
from service [permanently, or repaired them prior to continued use.] Had CSX Transportation
acted properly [to remove or repair the Jamco carts] … this incident would not have occurred
and Mr. Montgomery would not have been injured.” Id. Mr. Clauser took the same position in
his subsequent reports. Id. Moreover, in his deposition and his rebuttal report, Mr. Clauser
identified “near miss management theory” as the formal process underlying his opinion
regarding CSXT’s liability. Id. Clauser Dep. 143.
ii. The Basis of Mr. Clauser’s Opinion
Mr. Clauser testified at his deposition that he considers himself an expert in “industrial
accident investigation, machine guarding safety,” and “the near miss management concept of
safety improvement.” Clauser Dep. 108:4-14. Mr. Clauser also testified that he has been
qualified as an expert in employer safety practices “maybe 50 times,” but could not recall
specifically being qualified as an expert in the safety practices of a railroad employer. Id. at
109:8-110:8. According to his curriculum vitae, Mr. Clauser is a certified professional engineer
in Pennsylvania and New Jersey, with bachelor’s and master’s degrees in metallurgical
engineering and materials sciences. Clauser CV, [ECF No. 121-2 at Ex. F]. Mr. Clauser spent

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15 years working in the electric and steel industries before becoming a consultant. Id. His areas
of responsibility have included material characterization, failure analysis, quality assurance,
industrial accident investigation, fracture mechanics, and forensic engineering. Id. Mr. Clauser
testified that he has never worked in the railroad industry or been specifically trained in railroad
industry practices. Clauser Dep. 104:5-105:10. Mr. Clauser testified that the railroad industry
was included in his training and coursework generally and that “[s]afety practices in a steel mill
are the same safety practices in a railroad facility, [with] subtle differences.” Id.
When asked to provide the basis of his expertise in near miss management, Mr. Clauser
cited his “engineering training, failure analysis and prevention, training you learn by your
mistakes,” as well as his “experience on how you handle a situation like [the one at issue in this
case].” Id. at 108:15-109:7, 132:11-133:3. When asked to identify the specific rule, regulation,
literature, or authority upon which he rests his opinion that near miss management theory
imposes liability on CSXT, Mr. Clauser pointed to “almost any quality control book [including
one by an author named Juran],” “a lot of quality assurance programs [such as] ISO 2000,” and
“[s]afety literature that this is an accepted part of accident prevention[,]” including “[a]rticles in
the American Society of Safety Engineers journal.” Id. at 133:4-24, 137:12-25. In his rebuttal
report, Mr. Clauser specifically mentioned a representative “peer reviewed paper in the May
2013 issue of the Journal of the American Society of Safety Engineers by Mike Williamsen titled
Near-Miss Reporting [as] giv[ing] a good description and history of [the near miss management]
safety practice.” Clauser Reports, [ECF No. 121-2 at Ex. B]. Mr. Clauser testified at his
deposition that near miss management theory is taught in engineering schools, referenced in
standard engineering textbooks, recommended by peer-reviewed journal articles and professional
organization articles, and is a “recognized part of any good safety program” in the “safety

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industry[.]”

Clauser Dep. 143:24-145:10.

When asked about his familiarity with railroad

industry safety practices, Mr. Clauser stated:
THE WITNESS: It’s my knowledge that railroads are supposed to provide a safe
workplace for their employees.
Q: And what is the basis of that knowledge?
A: That goes across the board for industry, there are OSHA requirements. There
are FELA requirements. It’s just general practice in the industry to provide a safe
workplace for your people.
Id. at 105:17-107:24 (emphasis added). During the January 11, 2017 hearing on the instant
motion (“the hearing”), Plaintiffs’ counsel reiterated the above foundational bases for Mr.
Clauser’s opinion, and did not identify additional authority on which Mr. Clauser’s opinion
relies.
iii. The Objection
CSXT maintains that Mr. Clauser’s testimony should be excluded under Federal Rule of
Evidence 702 because, “[a]lthough [he] may be qualified as a metallurgist to offer an opinion as
to why the welds in the subject cart failed, he is wholly unqualified to offer opinions on railroad
industry safety practices.” Def.’s Mot., [ECF No. 120-1 at 18-21] . CSXT argues that Mr.
Clauser’s lack of “experience within the railroad industry,” lack of forensic or consulting
experience or training with railroad industry practices, and lack of familiarity “with any industry
standards regarding servicing tool carts,” makes him unqualified to supply expert testimony in
this case.

Id. at 11-12, 20.

“His assertion that safety practices generally are part of his

metallurgic engineering background is unavailing.” Id. at 20. CSXT also claims that Mr.
Clauser offers an insufficient basis for his liability opinion – erroneously relying on “general,

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‘across the board,’ safety documents as the basis for what is required of a railroad in order to
have a reasonably safe place to work[,]” rather than on highly federally regulated railroad
industry standards, rules, regulations, or publications. Id. at 13, 20. CSXT reasons that Mr.
Clauser’s lack of familiarity with and failure to rely on railroad industry safety practices means
that “he has not and cannot state that the near miss management theory of safety applies in the
railroad industry.” Def.’s Reply, [ECF No. 124 at 6]. Consequently, CSXT urges this Court to
reject Mr. Clauser’s “impermissible,” “‘because I told you so’” theory of liability. Id. (citing
Holesapple, 5 F. App’x. at 180).
Plaintiffs make two points in opposition to CSXT’s objection. First, Plaintiffs reject
CSXT’s argument that Mr. Clauser improperly applies general safety standards to “a very
specialized industry” as “erroneous because this case does not involve equipment unique to the
railroad industry.” Pls.’ Opp., [ECF No. 122 at 22]. Plaintiffs aver that “the tool carts [at issue]
are generic carts used in numerous different industries, and the theory that Mr. Clauser will
discuss applies to all industrial settings.” Id. at 24. Plaintiffs further note that “[t]here is not a
single regulation” within Title 49, C.F.R., Part 200 concerning tool carts. Id. Second, Plaintiffs
argue that Rule 702 and Fourth Circuit case law liberally permits testimony by experts who do
not have experience in the specific industry on which their opinion is based. Id. at 22-24
(citations omitted). Thus, Plaintiffs maintain that Mr. Clauser’s “experience in the ‘near miss
management theory of safety,’ which is based on his education and training, knowledge and
experience, will be helpful to the jury’s understanding what CSXT could have, and should have,
done to protect Mr. Montgomery from the risks caused by tool carts with broken welds.” Id. at
24.3

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At the hearing, Plaintiffs’ counsel narrowed the grounds for Mr. Clauser’s qualifications to his training and
education in near miss management theory.

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The cases cited by Plaintiffs in support of Mr. Clauser’s qualification to render an
opinion as to the railroad industry are factually distinguishable from the instant case. Those
cases each involved proffered experts with some experience in the particular industries at issue,
whereas Mr. Clauser has no experience or particularized knowledge in the railroad industry or
the safety practices applicable to employers who are end-users of tools. See Friendship Heights
Associates v. Vlastimil Koubek, A.I.A., 785 F.2d 1154 (4th Cir. 1986) (architect and structural
engineer qualified to provide expert testimony regarding standard of care owed by an architect
drafting specifications for the repainting of a building); Garrett v. Desa Industries, Inc., 705 F.2d
721 (1983) (mechanical engineer experienced with components of stud drivers qualified to
provide expert testimony regarding negligent manufacturing of stud drivers); Banker Steel Co.,
LLC v. Hercules Bolt Co., Inc., No. 10-0005, 2011 WL 1743175 (W.D. Va. May 6, 2011)
(engineer experienced with application of steel industry standards qualified to provide expert
testimony regarding application of said standards to facts of the case); KBS Preowned Vehicles,
LLC v. United Financial Casualty Co., No. 13-138, 2014 WL 4388294 (N.D. W.Va. Sept. 5,
2014) (former truck driver, truck fleet manager, commercial auto insurance underwriter, and
consultant qualified to provide expert testimony regarding cause of damage to a semi-truck). Mr.
Clauser’s experience in quality control for manufacturers is not helpful in establishing an
employer’s duties in this case.
Moreover, CSXT also challenges the insufficient basis for Mr. Clauser’s opinion, which
these cases do not address.

Id. While Plaintiffs correctly argue that Mr. Clauser is not

unqualified to deliver an expert opinion on tool carts simply because he has never worked in the
railroad industry, this Court does not find that Mr. Clauser’s opinion “is the product of reliable
principles and methods.” Fed. R. Evid. 702(c). CSXT conceded at the hearing, and the Court

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agrees, that near miss management is a real theory taught in schools and discussed by safety
engineers in safety industry publications. However, Plaintiffs have not established an adequate
basis for Mr. Clauser’s opinion that a railroad employer must adopt a near miss management
safety standard in order to ensure a reasonably safe workplace for its employees. Mr. Clauser
does not base his opinion on any government or industrywide standard incorporating near miss
management theory into any acceptable safety program.
Moreover, even assuming arguendo that use of near miss management theory was
required, Mr. Clauser has established no basis justifying his application of that theory to the facts
of this case. According to Mr. Clauser’s own testimony, mere visual inspection of these tool
carts would not have revealed the internal cracks causing Mr. Montgomery’s injury. Clauser
Dep. 127:11-128:15, 129:3-9, 131:1-132:5.

Mr. Clauser therefore suggests that near miss

management theory would require a more comprehensive (and presumably more expensive)
analysis of all of CSXT’s tool carts, potentially including a dye penetrant inspection, magnetic
particle inspection, or a “proof test” to assess the sufficiency of their load bearing capacities. Id.
at 92:5-93:4, 135:7-23. Again, he cites no basis for that opinion other than his own say so. The
railroad does not have to be a 100% insurer of its employees’ safety. See, e.g., Brown v. CSX
Transp., Inc., 18 F.3d 245, 248 (4th Cir. 1994) (“An employer has a duty to provide his
employees a safe place to work, but this duty cannot be absolute. … [R]ailroads are not insurers
of their employees.”) (citations omitted). The exceptionally high standard of safety that Mr.
Clauser attempts to impose on CSXT, a mere end-user of tool carts manufactured by another
company, lacks any foundation in government regulation, industry standard, or common
practice.

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The absence of a discernable, reliable, independent basis supporting his opinion renders
Mr. Clauser’s expert opinion evidence excludable. See Holesapple, 5 F. App’x at 180 (requiring
expert opinion evidence to be supported “by something more than the ‘it is so because I say it is
so’ of the expert”); Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995)
(concluding that, under Daubert, an expert opinion based on “[his] qualifications, [his]
conclusions, and [his] assurances of reliability … [is] not enough.”)
III.

SUMMARY JUDGMENT
a. Legal Standard
A motion for summary judgment shall be granted under Rule 56 of the Federal Rules of

Civil Procedure if there is no genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 884 (1990).
When considering a motion for summary judgment, the court “must view the evidence in the
light most favorable to the nonmoving party, and draw all reasonable inferences in favor of the
nonmovant.” McLean v. Ray, 488 F. App’x 677, 682 (4th Cir. 2012) (citations and internal
quotation marks omitted). Summary judgment is precluded only when there are disputes over
the facts that might affect the outcome of the proceedings under the applicable law. Factual
disputes that are not relevant or not necessary will not be considered in a summary judgment
motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party seeking summary
judgment bears the burden of showing an absence of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). In response, the non-moving party must show that there is a genuine issue
for trial. A fact is “material” if it “might affect the outcome of the suit under the governing law,”
and a dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. A court must

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decide whether there is a genuine issue for trial, “not . . . weigh the evidence and determine the
truth of the matter.” Id. at 242-43.
b. Federal Employers’ Liability Act
Under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq., “[e]very
common carrier by railroad in the ... United States shall be liable in damages to any person
suffering injury while he is employed by such carrier ... due to its negligence. 45 U.S.C. § 52.
FELA “is founded on commonlaw concepts of negligence and injury.” Urie v. Thompson, 337
U.S. 163, 182 (1949). “Railroads have a general duty under FELA to provide their employees
with a reasonably safe workplace, including safe tools and equipment, to perform the assigned
tasks.” Jordan v. S. Ry. Co., 970 F.2d 1350, 1353 (4th Cir. 1992). “This duty includes inspecting
the workplace and taking reasonable precautions to protect employees from possible harm.”
Brown, 18 F.3d at 249. Moreover, a railroad’s “duties are measured by what is reasonably
foreseeable under like circumstances.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 703 (2011).
c. Discussion
“To withstand summary judgment, a FELA claimant must … show the existence of a
triable issue of fact as to the traditional common-law elements of negligence, including duty,
breach, and causation.” Tootle v. CSX Transp., Inc., 746 F. Supp. 2d 1333, 1337 (S.D. Ga. 2010).
While “FELA imposes on a railroad carrier a duty to take reasonable precautions to inspect the
workplace and protect its employees from possible danger, the plaintiff still carries the burden of
proving some act of negligence by the carrier.” Deans v. CSX Transp., Inc., 152 F.3d 326, 330
(4th Cir. 1998) (internal citations omitted). To meet this burden, a FELA claimant must provide
“evidence to show that an earlier inspection would have revealed or cured the problem with the
[equipment at issue], or that the railroad had notice of the defect prior to the accident.” Id.
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Since the Court has excluded Mr. Clauser’s liability opinion as to CSXT, Plaintiffs must
rely on remaining evidence to establish that CSXT failed to provide a reasonably safe workplace.
Plaintiffs claim that CSXT’s duty to provide a reasonably safe workplace required it to inspect
and, if necessary, repair all tool carts following Mr. Kennell’s repairs to some tool carts, and that
CSXT breached its duty when it failed to do so. See Pls.’ Opp., [ECF No. 122 at 14, 27, 30]. At
the hearing, Plaintiffs’ counsel characterized CSXT’s negligence as the failure to promulgate
necessary safety rules and the failure of CSXT employees to report known issues to
management. However, the only evidence Plaintiffs presented to prove that Mr. Kennell’s prior
repairs of tool carts triggered the need to repair all tool carts is Mr. Clauser’s now-excluded
opinion.

Instead, Mr. Montgomery’s deposition testimony confirms that CSXT had safety

policies and procedures in place that obligated employees to inspect tool carts before each use.
Montgomery Dep. 87:21-24. If a tool cart was found to be unsafe, CSXT policy required
employees to tag the tool cart, remove it from service, and alert a supervisor. Id. at 153:5-19.
Mr. Montgomery also testified that he followed CSXT’s safety procedures on the day of the
accident; he inspected the tool cart prior to using it and did not observe any unsafe conditions,
such as cracks, on the cart. Id. at 87:8-89:10. For his part, Mr. Kennell testified that he repaired
cracked welds on an unspecified number of tool carts during an unspecified period of time, and
that he did not know whether the tool carts he repaired were manufactured by Jamco or not.
Kennell Dep. 14:11-16:9, 34:17-21, 35:14-18. Mr. Kennell also stated that he did not discuss his
repairs with anyone at CSXT and did not report any cracked tool carts as an unsafe condition. Id.
at 18:9-11, 19:13-18, 33:9-17. Plaintiffs therefore appear to suggest that CSXT had a duty to
promulgate more stringent rules to require someone like Mr. Kennell to report repairs to higher

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management. In the absence of Mr. Clauser’s testimony, there is no factual basis to establish
such a duty.
Moreover, “[r]easonable foreseeability of harm is an essential ingredient of FELA
negligence.” Brown, 18 F.3d at 249.

“‘[The railroad’s] duties are measured by what is

reasonably foreseeable under like circumstances.’ … Thus, ‘[i]f a person has no reasonable
ground to anticipate that a particular condition … would or might result in a mishap and injury,
then the party is not required to do anything to correct [the] condition.’” CSX Transp., 564 U.S.
at 703 (citations omitted).
In order for a jury to find CSXT liable on the basis of actual or constructive notice of the
unsafe condition in the tool carts, Plaintiffs necessarily invite several layers of speculation,
including: that the tool carts repaired by Mr. Kennell were Jamco tool carts or carts of the same
design; that the broken welds on the tool carts repaired by Mr. Kennell had the same defect as
the welds on the Jamco tool cart involved in the accident; that review of all tool carts at an earlier
time would have revealed an unsafe condition in the Jamco tool cart involved in this case; and
that CSXT management knew or should have known about the issue with the tool carts due to
Mr. Kennell’s prior repairs. Simply put, the record evidence does not support any of these
assumptions.
Instead, the record evidence shows that no PI-82 unsafe condition reports were filed in
connection with tool carts prior to the accident, see, e.g., Cornachia Dep. 38:16-40:23, Shogren
Dep. 15:18-20, and that Mr. Montgomery denied ever filing unsafe condition reports regarding
tool carts. Montgomery Dep. 60:6-13, 60:20-23. Moreover, Mr. Kennell denied discussing his
tool cart repairs with anyone at CSXT, Kennell Dep. 18:9-11, 19:13-18, 33:9-17, and CSXT
supervisors Michael Cornachia and Curtis Shogren denied being aware of problems with any

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tool carts in the Cumberland shop. Cornachia Dep. 38:16-40:23; Shogren Dep. 15:18-20. There
was no evidence of any prior employee injuries involving tool carts. See, e.g., Kennell Dep.
39:23-40:4.
At the hearing, Plaintiffs’ counsel argued that CSXT’s duty to inspect, isolate, and repair
its tool carts was triggered by the “pattern” of broken welds on tool carts. However, the
testimonial evidence on which Plaintiffs rely does not support this assertion. Pls.’ Opp., [ECF
No. 122 at 3-6]. As previously discussed, Mr. Kennell did not maintain repair records that would
indicate the number or timing of tool cart repairs over the years, or the brand of the tool carts
previously repaired. As summarized by Plaintiffs, CSXT machinist Kenneth Kiser’s deposition
testimony reflects that “at some time before, not but right before Mr. Montgomery’s accident,
[Mr. Kiser] observed a cart similar to the subject Jamco cart that had all four of its legs broken as
a result of broken welds. It was located in the tool bay where it would not only have been visible
to Mr. Kiser, but to every CSXT supervisor to walk through the area.” Pls.’ Opp., [ECF No. 122
at 5] (citing Kiser Dep. 10-11, 30-33). Mr. Kiser stated that he did not know how the tool cart
had broken and that he did not know if the cart he saw was a Jamco cart. Kiser Dep. 11:9-19,
12:3-6. Even if the Court assumes that the tool cart Mr. Kiser observed was a Jamco tool cart,
one tool cart with broken welds from an unknown cause does not amount to a “pattern” giving
CSXT prior notice of an unsafe condition in Jamco carts. That single cart could have fallen off a
truck or been hit by a locomotive. Any assumption about the cause of its broken welds is sheer
speculation.
Plaintiffs cannot carry their burden of proving foreseeability of harm based on the
incidence of Mr. Montgomery’s accident alone. See Consolidated Rail Corp. v. Gottshall, 512
U.S. 532, 543 (“FELA ‘does not make the employer the insurer of the safety of his employees

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while they are on duty. The basis of his liability is his negligence, not the fact that injuries
occur.’”) (citation omitted). Nor can Plaintiffs make their case on inferences based on guess
work. See, e.g., Deans, 152 F.3d at 330 (affirming summary judgment where a FELA plaintiff’s
claim of negligence “rests on mere speculation and conjecture”) (citing Sylvia Dev. Corp. v.
Calvert County, Md., 48 F.3d 810, 818 (4th Cir. 1995) (“‘[I]t is the province of the jury to
resolve conflicting inferences from circumstantial evidence. Permissible inference must still be
within the range of reasonable probability, however, and it is the duty of the court to withdraw
the case from the jury when the necessary inference is so tenuous that it rests merely upon
speculation and conjecture.’”). Plaintiffs have failed to present evidence that CSXT or its
supervisors had actual or constructive notice that welds with internal cracks on Jamco tool carts
posed a safety hazard to its employees who used the carts. Consequently, the Court finds that
Plaintiffs have failed to demonstrate reasonable foreseeability of harm. Summary judgment is
therefore warranted as to Plaintiffs’ claims against CSXT.4
IV.

Conclusion
For the reasons set forth above, Defendant CSXT’s Motion to Exclude Expert Testimony

and Motion for Summary Judgment is GRANTED. A separate order will be filed herewith.

Dated: January 19, 2017

/s/
Stephanie A. Gallagher
United States Magistrate Judge

4

Since the Court finds that CSXT is entitled to summary judgment due to the absence of evidence sufficient to
establish negligence or foreseeability, causation need not and will not be addressed herein.

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