Whitt v. Union Pacific Railroad Company
Filing
161
MEMORANDUM AND ORDER granting in part and denying in part 101 Motion in Limine; granting in part and denying in part 111 Motion in Limine. Ordered by Judge Joseph F. Bataillon. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JARED L. WHITT,
Plaintiff,
8:12CV358
vs.
MEMORANDUM AND ORDER
UNION PACIFIC RAILROAD COMPANY, a
Delaware corporation;
Defendant.
This matter is before the Court on defendant’s motions in limine to exclude the
testimony of George Gavalla, Filing No. 101, and motion in limine regarding the testimony of
Douglas Casa, Ph.D., Filing No. 111. This is an action for damages for alleged negligence
under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51 et seq. and
discrimination under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109.
Background
The Court previously outlined the facts in this case:
Defendant Union Pacific Railroad Company employed the plaintiff as an anchor
applicator machine operator. The plaintiff contends that on or about June 12, 2012,
he injured his left arm while lifting a bag of anchors. The plaintiff alleges that this left
arm injury may have predisposed him to the injury set forth in his second claim for
relief.
In his second claim for relief, the plaintiff asserts that on June 28, 2012, he operated
an anchor applicator machine on a very hot day with high humidity. The plaintiff sat
down in the shade when he began to feel weak and tired, with tingling in his hands,
arms, legs, and feet. When the plaintiff could not get up, his supervisor, Dave Birt,
loaded him into his truck and drove toward the hospital. While en route to the
hospital, Mr. Birt received a call from Manager Talmadge Dalebout. Mr. Dalebout
directed Mr. Birt to bring the plaintiff back to the worksite. The plaintiff contends that
Mr. Birt suggested he continue to the hospital, but Mr. Dalebout directed them to the
briefing area, where they attempted to cool the plaintiff down using water and an air
conditioner. The plaintiff sought medical treatment in the emergency room that
evening.
After this incident, the plaintiff alleges that he attempted to return to work on July 9,
2012, but he continued to experience swelling in his left hand and pain and
numbness in his hand and arm. The plaintiff contends that his supervisor took him
at that time to the emergency room on July 12, 2012, because of his symptoms, and
he has been off work since July 14, 2012. The plaintiff asserts that he received
treatment for the residuals of heat stroke, and the doctors diagnosed him with
thoracic outlet syndrome, brachial plexus lesions, carpal tunnel syndrome, and ulnar
neuropathy on his left side. The plaintiff argues that these injuries directly resulted
from defendant’s negligence.
The plaintiff seeks to recover damages under the FELA for his claim that defendant
breached its duty to exercise ordinary care to provide employees with a safe place to
work. The plaintiff claims the defendant failed to implement reasonably safe
methods and procedures for the performance of work, failed to implement
reasonably safe methods and procedures to train the plaintiff and his supervisors to
guard against heat stroke, failed to implement procedures to train supervisors to
respond appropriately to heat stroke, and breached its duty to comply with its own
job safety rules.
In his third claim for relief, the plaintiff asserts that the defendant’s interference with
his medical treatment violated the terms of the FRSA, 49 U.S.C. § 20109(c)(1),
which states, “[a] railroad carrier or person covered under this section may not deny,
delay, or interfere with the medical or first aid treatment of an employee who is
injured during the course of employment.” The plaintiff seeks to enforce the FRSA
pursuant to 49 U.S.C. § 20109(d), which permits enforcement when an employee
alleges discrimination in violation of 49 U.S.C. § 20109(c). The plaintiff contends the
defendant discriminated against him when it delayed his medical care, and therefore,
enforcement is appropriate pursuant to subsection (d). The plaintiff seeks punitive
damages for the defendant’s alleged FRSA violation.
Filing No. 106, Memorandum and Order, at 1-3.
Legal Standards
The standards for the admissibility of expert testimony are found in Fed. R. Evid.
702, which states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts
or data, (2) the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of the case.
It is a trial court’s responsibility to act as a gatekeeper, ensuring that all expert testimony is
both relevant and reliable before admitting it at trial. Daubert v. Merrell Dow Pharms., 509
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U.S. 579, 589 (1993). This requirement applies not only to testimony based on scientific
knowledge, but also to testimony based on technical or other specialized knowledge.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
The Eighth Circuit recognizes a three part test for determining the admissibility of an
expert’s testimony under Rule 701. Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8th
Cir. 2001); Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008). First, evidence based
upon scientific, technical or other specialized knowledge must be useful to the jury in
deciding an ultimate issue of fact. This is an application of Fed. R. Evid. 401, evidence must
be relevant. Second, the expert witness must be qualified to assist the finder of fact. Finally,
the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that it
may properly provide the assistance the jury requires if it accepts the testimony as true.
Lauzon, 270 F.3d at 686; Polski, 538 F.3d at 839.
“’As a general rule, the factual basis of an expert opinion goes to the credibility of the
testimony, not the admissibility, and it is up to the opposing party to examine the factual
basis for the opinion in cross-examination.’” Hose v. Chicago Northwestern Transp. Co., 70
F.3d 968, 974 (8th Cir. 1995), quoting Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th
Cir. 1988). Only when the expert’s opinion is “’so fundamentally unsupported that it can
offer no assistance to the jury’” must the opinion be excluded. Hose, 70 F.3d at 974 quoting
Loudermill, 863 F.2d at 570. “Doubts regarding the usefulness of an expert’s testimony are
resolved in favor of admissibility.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758
(8th Cir. 2006).
Discussion
A. Testimony of George Gavalla
Defendant contends that Gavalla should not be permitted to testify, as his testimony
relates to matters that exceed his area of expertise, relates to matters beyond his expertise,
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and is of a legal nature which is the Court’s responsibility to so instruct the jury. Gavalla
indicates he is a “national railroad safety executive.” Filing No. 102-1, Curriculum Vitae,
Appendix A, Ex. 1 at 26. Defendant contends that there is no such experience supporting
this claim listed on Gavalla’s resume. However, the Court notes that Gavalla worked for the
Brotherhood of Railroad Signalman labor union, and thereafter, he worked for the Federal
Railroad Administration (FRA), where he worked in the areas of fatigue management,
remote control locomotive operation, and grade crossing safety, and he has substantial
knowledge and experience regarding safety issues. Id. at 28-29. Additionally, defendant
notes that Gavalla has no medical, legal or human resources training, and the Court finds
that to be true based upon a reading of the curriculum vitae.
Gavalla’s report lists 20 “Conclusions” regarding plaintiff’s three claims. Id. at 19-22.
However, plaintiff has now indicated he will not offer Gavalla’s opinions as to conclusion
numbers 1-11. Filing No. 116 at 2. As alleged in Count III, plaintiff addresses the legal
requirement that Union Pacific not hinder medical care under 49 U.S.C. § 20109(c)(1).
Gavalla has a number of opinions in this regard, including why certain reports are important
under the Act; information regarding legislative history; Gavalla’s statements and
conclusions regarding interference with medical care by defendant’s employees; his opinion
that a single violation of the FRSA negatively impacts railroad safety; and his testimony that
Union Pacific allegedly violated its own policies regarding treatment. Defendant argues that
all of these conclusions are irrelevant.
Plaintiff counters arguing that many of the issues Gavalla will address go to punitive
damages. Plaintiff contends that accurate reports of safety are not happening, and there is
intimidation of employees to not report. Plaintiff argues that Gavalla is uniquely qualified to
address the regulations required by the FRA and the policies in place at Union Pacific.
Plaintiff relies on a similar case wherein Gavalla testified in a similar fashion. In Barati v.
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Metro-North R.R. Commuter R.R. Co., 939 F. Supp. 2d 143 (D. Conn. 2013), the plaintiff
was injured and was then disciplined and terminated after reporting his injury. He brought a
claim under the FELA for his injury, combined with a claim under the FRSA for the discipline
he received, alleging the discipline was retaliatory in violation of the FRSA. The jury
returned a verdict for the plaintiff on both the FELA and FRSA claims, and awarded the
plaintiff punitive damages on the FRSA claim. The railroad filed a motion in limine to totally
preclude Mr. Gavalla from testifying. The Court granted the motion in part, but allowed Mr.
Gavalla to testify regarding his experience and knowledge as head of the FRA Office of
Safety, which included testimony regarding the rules and safety regulations the railroads
were required to implement and the Internal Control Plan (ICP) of the defendant and its
requirements. Id., at 147-48.
The Court agrees that Gavalla has extensive background and history in the railroad
industry, particularly with regard to certain safety and accident issues.
The Court also
agrees with the analysis in Barati. At this point in time, the Court will permit Mr. Gavalla to
testify generally as to the safety rules and safety regulations that railroads are required to
implement, defendant’s ICP and its requirements, the importance of accurate reporting by
railroads and why the FRA needs such accurate data, the purpose of an ICP, categories of
conduct that violate FRA regulations and defendant’s ICP, the reasons that accurate data
may not be reported and why the reporting of accurate data matters.
However, if Mr. Gavalla strays too far from that which is relevant in this case, the
defendant is free to object, and the Court will rule on the objection at that time. In addition,
the Court will not permit Gavalla to testify that certain behaviors violated the federal law.
Under Eighth Circuit law, the meaning of a statute is not a proper subject for expert
testimony. Such legal matters “are for the trial judge, and it is the judge’s job to instruct the
jury on them.” Southern Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d
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838, 841 (8th Cir. 2003). Nor will the Court permit Gavalla to testify as to what constitutes
intimidation or interference with medical decisions in this case.
In addition, Gavalla’s
conclusion that if Union Pacific violated § 20109(c)(1), it will have “negatively impacted
railroad safety in general and safety on the UP, in particular” is not supported by any
evidence. Filing No. 102, Ex. 1, ¶ 18 at 21. Under Khumo it is subjective speculation and is
inadmissible See also, Presley v. Lakewood Eng’g & Mfg. Co., 553 F.3d 638, 643 (8th Cir.
2009) (citing Daubert, 509 U.S. at 593-94); United States Gypsum Co. v. Lafarge N. Am.,
670 F. Supp. 2d 748, 756 (N.D. Ill. 2009). Likewise, the Court finds that whether Union
Pacific complied with its own policies is not the type of testimony that requires an expert.
As the Eighth Circuit held in Ellis v. Miller Oil Purchasing Co., 738 F.2d 269, 270 (8th Cir.
1984), “[w]here the subject matter is within the knowledge or experience of lay people,
expert testimony is superfluous.”
B. Expert Testimony of Douglas Casa, Ph.D.
Dr. Douglas Casa issued a report in this case. Filing No. 123-2. Dr. Casa has
extensive education, training and experience in the areas of heat stress, heat-related
injuries and illnesses, and prevention, recognition and treatment of heat-related injuries and
illnesses. His background is in exercise physiology, and he is currently a professor of
kinesiology at the University of Connecticut.
He has authored or contributed to
approximately 150 published works. Among the numerous articles and protocols he has
authored, Dr. Casa co-wrote, with Dr. O’Connor (another of Plaintiff’s experts), the heat
stroke care policy for the U.S. Army. He is also the Chief Operating Officer of the Korey
Stringer Institute. He has personally treated over 167 heat stroke victims. Based upon his
review of plaintiff’s symptoms, the testimony of the witnesses who were with plaintiff after
the incident, and the type and duration of plaintiff’s lingering sequelae, Dr. Casa opines that
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plaintiff had a mild heat stroke, and it is possible he will have lingering sequelae that will
carry forward for the rest of his life.
Defendant contends that Casa wants to give a medical opinion regarding the initial
injury and its exacerbation by the heat-related incident. Casa also opines that there was an
irreversible delay in giving the plaintiff proper care. The Court will permit Casa to testify in
his areas of expertise, namely heat related issues. However, the Court will not permit him
to testify as to medical causation, as he is not a medical doctor.
Casa also has an opinion regarding whether defendant violated the FRA and the
FRSA. Plaintiff agrees that he will not be asking Casa if defendant violated these laws and
regulations. Casa does, however, intend to testify regarding the flaws in defendant’s heat
stress prevention program training and other related policies. Plaintiff likewise agrees that
he will not ask Casa to testify as to legal conclusions, but will ask him, based on his
expertise, what constitutes a safe working environment under these circumstances.
Likewise, Casa may testify as to the factors1 he believes support the theory that plaintiff
suffered a heat stroke.2 The Court agrees that these areas are in fact in the expertise of
Casa, and they will be helpful to the trier of fact. If, however, defendant believes plaintiff
exceeds this scope or offers legal conclusions, he may object during trial.
1
Such factors as espoused by Casa include (1) plaintiff did not recover quickly once activity was
ceased and cooling began; (2) plaintiff suffered from a wide array of symptoms in the immediate
aftermath of the heat stroke, which included CNS dysfunction; and, (3) plaintiff had an array of lingering
symptoms that lasted for days after the heat stroke.
2
Defendant argues this evidence is not admissible, as the expert has no information regarding
plaintiff’s core temperature. While this may be true, the missing information is due in large measure to the
fact that defendant’s employees did not take the plaintiff to the hospital at the time of the incident, and
Casa is using other factors that support his opinion.
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THEREFORE, IT IS ORDERED THAT:
1. Defendant’s motion in limine, Filing No. 101, is granted in part and denied in part
as set forth herein.
2. Defendant’s motion in limine, Filing No. 111, is granted in part and denied in part
as set forth herein.
Dated this 12th day of August, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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