JARKA et al v. HOLLAND et al

Filing 50

OPINION filed. Signed by Judge Brian R. Martinotti on 8/30/2018. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

STANLEY JARKA, et al.,
Plaintiffs,
v.
WILLIAM HOLLAND A/K/A WILLIAM
MAURICE HOLLAND, JR. and
D.M. BOWMAN, INC.,
Defendants.

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Civil Action No. 13-1912 (BRM)(TJB)

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court are (1) Defendants William Holland a/k/a William Maurice Holland
(“Holland”) and D.M. Bowman, Inc.’s (“Bowman”) (together, “Defendants”) Motion for Partial
Summary Judgment (ECF No. 40), (2) Defendants’ Motion in Limine (ECF No. 41), (3) Plaintiffs
Stanley Jarka, Crystal Jarka, Shina De Shong, and Lauren Dunham’s (“Plaintiffs”) Cross-Motion
to Amend the Complaint (ECF No. 43), and (4) Plaintiffs’ Motion in Limine (ECF No. 42).
Plaintiffs oppose both of Defendants’ motions (ECF Nos. 43 and 44), and Defendants oppose
Plaintiffs’ Motion in Limine (ECF No. 45). Having reviewed the parties’ submissions filed in
connection with the motion and having declined to hold oral argument pursuant to Federal Rule of
Civil Procedure 78(b), for the reasons set forth below and for good cause having been shown,
Defendants’ Motion for Partial Summary Judgment is DENIED, Defendants’ Motion to Amend
is GRANTED, Defendants’ Motion in Limine is DENIED in part and DENIED WITHOUT
PREJUDICE in part, and Plaintiffs’ Motion is Limine is DENIED WITHOUT PREJUDICE.

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I.

BACKGROUND

This personal injury lawsuit arises from the collision of a tractor trailer and a New Jersey
Transit (“NJT”) train that occurred on November 12, 2012 (the “Accident”). (Ds.’ Statement of
Undisputed Material Facts in Supp. of its Mot. for Summ. J. (ECF No. 40-4) ¶ 8); Pl.’s Resp. to
Ds.’ Statement of Material Facts (ECF No. 43-2) ¶ 8.) All of the Plaintiffs were NJT employees
and were on the train at the time of the Accident, with the exception of Crystal Jarka, who is the
spouse of Stanley Jarka. (Compl. (ECF No. 1) ¶ 11.) Holland was operating the tractor trailer,
which Bowman owned, in the scope of his employment as an agent of Bowman. (ECF No. 40-4
¶ 7; ECF No. 43-2 ¶ 7.) Holland was lost on his way to making a delivery. (ECF No. 40-4 ¶¶ 910; ECF No. 43-2 ¶¶ 9-10.) Holland asked a pedestrian for directions, and the pedestrian told him
to go to the end of the street and make a right. (ECF No. 40-4 ¶¶ 14-16; ECF No. 43-2 ¶¶ 14-16.) 1
Holland followed the pedestrian’s directions and made a right turn at an intersection, and his tires
became stuck on the railroad tracks. (ECF No. 40-4 ¶ 18; ECF No. 43-2 ¶ 18.) 2
A person who was stopped at the crossing called the police to tell them Holland’s truck
was stuck on the tracks, and the dispatcher at the Somerset County Communication Center
confirmed that a passerby called 911 to report a truck on the tracks. (ECF No. 40-4 ¶¶ 20, 22);
(ECF No. 43-2 ¶¶ 20, 22.) Before the Accident, there were no defects with the truck and its gears

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Plaintiffs do not dispute these facts but contend Holland violated Bowman’s rules by asking a
pedestrian for directions instead of contacting Bowman for directions and instructions how to
proceed safely. (ECF No. 43-2 ¶¶ 14-16.)
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Plaintiffs do not dispute this fact but contend Bowman never trained Holland on making turns
at railroad crossings or on procedures to follow if his truck became stuck on railroad tracks.
(ECF No. 43-2 ¶ 18.) Plaintiffs further Holland did not call NJT to warn he was stuck on the
tracks, despite a sign instructing motorists to call a toll-free NJT number in an emergency. (Id.)
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and brakes were working properly. (ECF No. 40-4 ¶¶ 25-26); (ECF No. 43-2 ¶¶ 25-26.) 3 The train
collided with the truck, which Plaintiffs alleged caused them to suffer serious and permanent
injury. (ECF No. 1 ¶ 14.)
II.

LEGAL STANDARD

A. Summary Judgment
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). A factual dispute is genuine only if there is “a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving party,” and it is material only if it
has the ability to “affect the outcome of the suit under governing law.” Kaucher v. Cty. of Bucks,
455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary
judgment. Anderson, 477 U.S. at 248. “In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any weighing of the evidence; instead,
the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in
his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson,
477 U.S. at 255)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
(1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The party moving for summary judgment has the initial burden of showing the basis for its
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear the

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Plaintiffs do not dispute this fact by contend Bowman never properly trained Holland in “using
the inter axle differential lock,” a procedure Plaintiffs maintain would have allowed Holland to
extricate himself from the tracks. (ECF No. 43-2 ¶ 26.)
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burden of persuasion at trial, that party must support its motion with credible evidence . . . that
would entitle it to a directed verdict if not controverted at trial.” Id. at 331. On the other hand, if
the burden of persuasion at trial would be on the nonmoving party, the party moving for summary
judgment may satisfy Rule 56’s burden of production by either (1) “submit[ting] affirmative
evidence that negates an essential element of the nonmoving party’s claim” or (2) demonstrating
“that the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” Id. Once the movant adequately supports its motion pursuant to Rule
56(c), the burden shifts to the nonmoving party to “go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Id. at 324; see also Matsushita, 475
U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the
merits of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence
and decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as to any material fact,” however, if a party fails “to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.
1992).

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B. Motion to Amend
Amendments of pleadings are governed by Federal Rules of Civil Procedure 15 and 16. A
motion to amend a pleading that is filed before the deadline for amendments of pleadings has
passed in a Rule 16 Scheduling Order will be governed by Federal Rule of Civil Procedure 15(a)
only. Pursuant to Rule 15(a): “[A] party may amend its pleading only with the opposing party’s
written consent or the courts leave. The court should freely give leave when justice so requires.”
“The grant or denial of leave to amend is a matter committed to the sound discretion of the
district court.” Arab African Int’l Bank v. Epstein, 10 F.3d 168, 174 (3d Cir. 1993). The Third
Circuit has adopted a liberal approach under to the amendment of pleadings Rule 15 to ensure that
“a particular claim will be decided on the merits rather than on technicalities.” Dole v. Arco Chem.
Co., 921 F.2d 484, 487 (3d Cir. 1990) (internal citation omitted). The burden is generally on the
party opposing the amendment to demonstrate why the amendment should not be permitted.
Foman v. Davis, 371 U.S. 178 (1962). Leave to amend a pleading may be denied where the court
finds: (1) undue delay; (2) undue prejudice to the non-moving party; (3) bad faith or dilatory
motive; or (4) futility of amendment. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
III.

DECISION
A. Defendants’ Motion for Partial Summary Judgment and Plaintiffs’ CrossMotion to Amend the Complaint

Defendants argue they entitled to partial summary judgment as to (1) any claims of direct
corporate liability of Bowman, and (2) any claims for punitive damages against Defendants. (Ds.’
Br. in Supp. of Mot. for Summ. J. (ECF No. 40-2) at 1-2.) Plaintiffs do not dispute Defendants’
arguments about the deficiencies in the Complaint, but they argue Defendants’ Motion for Partial
Summary Judgment should be construed as a motion to dismiss pursuant to Federal Rule of Civil
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Procedure 12. (Pl.’s Br. in Opp. to Ds.’ Mot. for Summ. J. (ECF No. 43-1) at 2.) Plaintiffs point
out that, had Defendants filed a Rule 12 motion, Plaintiffs would have the automatic right to amend
their Complaint pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). (Id.)
The Court agrees with Plaintiffs’ characterization of Defendants’ Motion for Partial
Summary Judgment. Defendants’ arguments in support of their motion are confined to deficiencies
in Plaintiffs’ Complaint. (ECF No. 40-2 at 1-2.) The fact that Defendants titled their motion one
for partial summary judgment is of no moment. “[T]he function of the motion, and not the caption,
dictates which [Federal] Rule [of Civil Procedure] is applicable.” United States v. Fiorelli, 337
F.3d 282, 287-88 (3d Cir. 2003) (citing Perez v. Cucci, 932 F.2d 1058, 1061 n.10 (3d Cir. 1991);
Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988)).
Plaintiffs contend discovery has yielded facts to support both their claims for direct
corporate liability against Bowman and for punitive damages. As to the claims for direct corporate
liability, Plaintiffs claim the undisputed evidence demonstrates Bowman failed to train Holland in
what procedures to follow in the event his truck became stuck on railroad tracks. (ECF No. 43-1
at 3.) Plaintiffs further argue Bowman’s failure to instruct its drivers regarding procedures to
follow when a truck becomes stuck on railroad tracks is not merely negligent, but willful, wanton,
and reckless conduct that supports a claim for punitive damages. 4 (Id. at 3-4.)
To determine whether to grant leave to amend, courts consider factors the Supreme Court
proffered in Foman, 371 U.S. at 178. Mullin v. Balicki, 875 F.3d 140, 149 (3d Cir. 2017). Among
the factors courts consider are “undue delay, bad faith or dilatory motive on the part of the movant;
repeated failure to cure deficiencies by amendments previously allowed; prejudice to the opposing

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Under New Jersey law, claims for punitive damages must be supported by clear and
convincing evidence that the defendant’s acts or omissions “were actuated by actual malice or
accompanied by a wanton and willful disregard” of the safety of others. N.J.S.A. § 2a:15-5.12.
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party; and futility.” Id. (citing Foman, 371 U.S. at 182; United States ex rel. Schumann v.
AstraZeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir. 2014)). Here, the Court finds none of the
factors are present and, indeed, Defendants have not argued any Foman factors apply.
The Court finds Defendants’ Motion for Partial Summary Judgment is properly construed
as a motion to dismiss, and the motion is DENIED. Plaintiffs’ Cross-Motion to Amend is
GRANTED.
B. Defendants’ Motion in Limine
Defendants seek to limit the expert opinion of Plaintiffs’ expert, George Gavalla. (Ds.’ Br.
in Supp. of the Mot. in Limine (ECF No. 41-2).)
1. Mr. Gavalla’s Qualifications
Federal Rule of Evidence 702 governs the admissibility of expert testimony. See Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993). The Third Circuit has held “Rule 702
embodies three distinct substantive restrictions on the admission of expert testimony:
qualifications, reliability, and fit.” Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 80 (3d Cir.
2017) (quoting Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000) (citing In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994))).
First, the witness must be qualified to testify as an expert.
Qualification requires that the witness possess specialized expertise.
We have interpreted this requirement liberally, holding that a broad
range of knowledge, skills, and training qualify an expert as such.
Second, the testimony must be reliable. In other words, the expert’s
opinion must be based on the methods and procedures of science
rather than on subjective belief or unsupported speculation; the
expert must have good grounds for his or her belief. An assessment
of the reliability of scientific evidence under Rule 702 requires a
determination as to its scientific validity. Third, the expert testimony
must fit, meaning the expert’s testimony must be relevant for the
purposes of the case and must assist the trier of fact.
Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quotations and
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citations omitted).
Here, Defendants do not address all of the Daubert factors and instead focus only on Mr.
Gavalla’s qualifications. The Third Circuit has held the standard for an expert’s qualifications is a
liberal one. Calhoun, 350 F.3d at 321; see also Elcock, 233 F.3d at 742. “For a court to qualify a
witness to testify as an expert, Rule 702 requires the witness to have ‘specialized knowledge’
regarding the areas of testimony.” Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998). The expert
can base his or her specialized knowledge on practical experience or formal training. Id. The Third
Circuit has stated the qualification standard is liberal, though “at a minimum, a proffered expert
witness . . . must possess skill or knowledge greater than the average layman.” Id. (quoting Aloe
Coal Co. v. Clark Equip. Co., 816 F.2d 110, 114 (3d Cir. 1987)).
Defendants contend Mr. Gavalla’s area of expertise is railways, not trucking, but his expert
report offers opinions on trucking and truck driving. (ECF No. 41-2 at 4.) Defendants claim none
of Mr. Gavalla’s education, training, and experience bears on trucking or truck driving. (Id. at 5.)
They point out Mr. Gavalla identified himself as a railway safety expert, but has never had a
commercial driver’s license and has never been employed by a trucking company. (Id. at 6.)
Plaintiffs argue Mr. Gavalla is qualified to offer expert testimony regarding trucking and
truck driving in the context of the Accident. (Pls.’ Br. in Opp. to Ds.’ Mot. in Limine (ECF No.
44) ¶¶ 1, 6-7.) Mr. Gavalla has served as an employee in Conrail’s signal department. (Id. ¶ 1.) He
was a representative for the Brotherhood of Railroad Signalmen and testified before the
Connecticut General Assembly Transportation Committee regarding state regulations governing
the maintenance and testing of railroad crossing warning devices. (Id.) Defendants also claim Mr.
Gavalla has investigated numerous train accidents involving highway-rail grade crossings systems.
(Id. ¶ 7.)
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The Court finds Mr. Gavalla satisfies the qualifications criterion. Mr. Gavalla has over four
decades of experience related to railroad crossing safety and accidents. The Third Circuit has held
the specialized knowledge requirement should be interpreted liberally. Elcock, 233 F.3d at 741.
Here, Mr. Gavalla’s knowledge of the nature of railroad crossing accidents would be greater than
that of the average layman. Id. (citing Waldorf, 142 F.3d at 625.) Given his expertise in railroad
crossing safety, he is qualified to testify as to “the [D]efendants’ duties at grade crossings, the
reasons those duties exist, and how the [D]efendants breached those duties in this [A]ccident.”
(ECF No. 44 ¶ 8.) 5
2. Defendants’ Other Arguments for Limiting Mr. Gavalla’s Testimony
In addition to challenging Mr. Gavalla’s qualifications, Defendants seek to limit his
testimony in several respects. Defendants argue: Mr. Gavalla should be precluding from (1)
creating a factual narrative; (2) speculating as to Defendants’ state of mind, particularly whether
Defendants “ignored” various safety requirements and practices; (3) offering testimony that is
irrelevant and unfairly prejudicial; (4) offering testimony that is a conduit to present hearsay and
other inadmissible evidence; (5) offering legal conclusions; and (6) presenting testimony that is
merely conclusory. The Court finds it would be premature to resolve these disputes at this point.
See MSKP Oak Grove, LLC v. Venuto, No. 10-6465, 2017 WL 1807562, *3 (D.N.J. May 5, 2017)
(citing Ebenhoech v. Koppers Indus., Inc., 239 F. Supp. 2d 455, 461 (D.N.J. 2002) (declining to
decide issues in a motion in limine when “the context of the trial” would clarify those issues)).
Here, it would be premature to determine the admissibility of particular aspects of Mr. Gavalla’s
expert report and testimony. See Sperling v. Hoffman-LaRoche, Inc., 924 F. Supp. 1396, 1413
(D.N.J. 1996) (“[I]t is difficult to rule on the admissibility of pieces of evidence prior to trial. It is
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This decision does not preclude Defendants from cross-examining Mr. Gavalla at trial regarding
his qualifications.
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often useful to wait and see how the trial unfolds.”); MSKP Oak Grove, LLC, 2017 WL 1807562
at *4.
Therefore, Defendants’ Motion in Limine is DENIED as to the issue of Mr. Gavalla’s
qualifications to testify regarding trucking and truck driving and DENIED WITHOUT
PREJUDICE as to the remaining issues Defendants raised in their motion. Defendants may raise
those arguments at trial.
C. Plaintiffs’ Motion in Limine
Plaintiffs seek to preclude Defendants from introducing evidence in five categories: (1)
collateral source evidence pertaining to Plaintiffs’ receipt of or eligibility for monthly benefits
from the United States Railroad Retirement Board; (2) evidence related to surveillance of
Plaintiffs; (3) the use of any undisclosed witnesses; (4) the use of any supplemental expert reports;
and (5) information concerning Plaintiffs’ eligibility to qualify for Railroad Retirement Board
pension benefits at age sixty, or at other ages depending on years of service. (ECF No. 42 at 1-4.)
In Doyle v. N.J. Transit Rail Operations, Inc., No. 04-5209, 2008 WL 4755735, *1 (D.N.J. Oct.
29, 2008), this Court decided a motion in limine substantially similar to Plaintiffs’ motion. The
Court’s decision here is consistent with the findings in that case.
First, Defendants may not directly introduce collateral source evidence. Reed v.
Philadelphia, Bethlehem & N. England R.R. Co., 939 F.2d 128, 134 (3d Cir. 1991). However,
Defendants may introduce collateral source to impeach Plaintiffs if, for example, Plaintiffs testify
financial hardship led them to return to work prematurely. Doyle, 2008 WL 4755735 at *2; see
also Coney v. NPR, Inc., No. 03–1324, 2006 WL 2583581, at *2 (E.D.Pa. Aug.31, 2006); Kotler
v. Nat'l R.R. Passenger Corp., 954 A.2d 514 (N.J. Super. Ct. App.Div.2008) (“[T]he federal courts
have permitted inquiry into collateral source benefits when the plaintiff makes specific reference
to collateral source payments on direct examination . . . on matters affecting the credibility of the
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witness.”). “Because the admissibility of this evidence depends upon the substance of [Plaintiffs’]
testimony at trial, the Court reserves final decision on this issue until, or should it arise at, trial.”
Id.
As to the second, third, and fourth categories of evidence Plaintiffs seek to exclude
(surveillance of Plaintiffs, the use of undisclosed witnesses, and the use of supplemental expert
reports), Defendants must abide by the disclosure requirements of Federal Rule of Civil Procedure
26. Id. at *3. However, Defendants may introduce the surveillance evidence or additional witnesses
for impeachment purposes, which is an issue dependent on specific circumstance and one that must
be determined at trial. As for supplemental expert reports, Defendants must comply with Federal
Rule of Civil Procedure 26(a)(2).
In summary:
1. Defendant[s] may offer evidence concerning [Plaintiffs’] receipt
of collateral source benefits for impeachment purposes.
2. Defendant[s] may offer evidence relating to its ostensive
surveillance of [Plaintiffs] for impeachment purposes without
pretrial notice. Relatedly, Defendant[s] must disclose all intended
witnesses and evidence before trial unless introduced for
impeachment purposes.
3. Should Defendant[s] seek to offer expert testimony, it must
comply with the Federal Rules of Civil Procedure concerning
pretrial disclosure and preparation.
Doyle, 2008 WL 4755735 at *4.
The issue of information concerning Plaintiffs’ eligibility to qualify for Railroad
Retirement Board pension benefits was not before this Court in Doyle. Defendants argue they
should be permitted to rebut Plaintiffs’ expert’s calculation of a retirement age of sixty-seven by
introducing evidence that Plaintiffs were eligible for pensions at age sixty with thirty years of
service. (ECF No. 45 at 9.) Again, the Court finds the admissibility of that evidence is best
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determined at trial. See Ebenhoech, 239 F. Supp. 2d at 461. Therefore, Plaintiffs’ Motion in Limine
is DENIED WITHOUT PREJUDICE. The parties may renew their arguments regarding the
admissibility of this evidence in the event the issue arises at trial.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motion for Partial Summary Judgment (ECF No.

40) is DENIED; Plaintiffs’ Cross-Motion to Amend (ECF No. 43) is GRANTED; Defendants’
Motion in Limine (ECF No. 41) is DENIED in part as to the issue of Mr. Gavalla’s qualifications
to testify regarding trucking and truck driving and DENIED WITHOUT PREJUDICE as to the
remaining issues; and Plaintiffs’ Motion is Limine (ECF No. 42) is DENIED WITHOUT
PREJUDICE. An appropriate Order will follow.

Date: August 30, 2018

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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