Whalen v. CSX Transportation, Inc.

Filing 266

OPINION AND ORDER re: 209 MOTION to Sever Third Party Actions. filed by Daniel Whalen. Accordingly, for all the foregoing reasons, plaintiff's motion to sever the third-party claims is denied in all respects. The Clerk of the Court is respectfully requested to mark Docket Item 209 closed. (As further set forth in this Order) (Signed by Magistrate Judge Henry B. Pitman on 9/14/2016) Copies Sent By Chambers. (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
DANIEL WHALEN,

:
Plaintiff,

CSX TRANSPORTATION, INC.,
et al.,

13 Civ. 3784 (LGS)(HBP)

:

-against-

:

OPINION
AND ORDER

:
:

Defendants.
:
-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

By notice of motion dated December 18, 2015 (Docket
Item ("D.I.") 209), plaintiff moves to sever or dismiss the
third-party claims of defendant CSX Transportation, Inc. ("CSX")
against Office Environments Service, Inc. and Haworth Inc.

As

explained in more detail below, to the extent plaintiff claims
that CSX's third-party claims should be severed because those
claims are legally flawed, plaintiff's motion lacks any legal
basis.

To the extent plaintiff is asserting that the third-party

claims should be severed as a matter of discretion, plaintiff's
arguments also fail.

To the extent plaintiff is seeking the

dismissal of the third-party claims, he lacks standing to seek
dismissal and, therefore, it is not necessary to address the

merits of this aspect of the motion.1

Accordingly, plaintiff's

motion for severance is denied.

II.

Facts

Plaintiff brings this action under the Federal Employers Liability Act, 45 U.S.C. §§ 51 et seq., alleging that on or
about November 8, 2011, while employed by defendant CSX, he was
injured while attempting to sit in a Zody Task Chair in the
Carman's Office at CSX's Oak Point Yard, located in the Bronx,
New York.

According to plaintiff, "when he went to sit in the

chair, it suddenly and without warning rapidly reclined all the
way backwards, then just as suddenly the chair abruptly jerked
back to its original upright position" (Plaintiff's Memorandum of
Law in Support of Motion for Spoliation Sanctions, dated Dec. 18,
2015 (D.I. 206)("Plaintiff's Mem.") at 2).2

As a result, plain-

tiff claims to have sustained injuries to his back.

In addition

to defending against plaintiff's claims, CSX has brought a third-

1

Although the third-party defendants support plaintiff's
motion, they have not themselves moved for dismissal of the
third-party claims. Thus, the only movant is plaintiff.
2

An accident report prepared by plaintiff himself on the day
of the accident describes the incident as follows: "Sat in
Office Chair. Chair unexpectedly rapidly reclined. Expecting a
fall [I] jerked forward to regain balance" (Personal Injury
Report of D. Whalen at 10, annexed as Exhibit 6 to Plaintiff's
Mem.).
2

party action against the chair's seller, Office Environments
Service Inc., and its manufacturer, Haworth, Inc., seeking
contribution and/or indemnity and alleging negligence, breach of
warranty and related claims.
Plaintiff argues that CSX's third-party claims should
be severed because (1) they are barred by the FELA and (2) trying
the FELA and third-party claims to the same jury will result in
juror confusion due to the different legal standards applicable
to each set of claims.3

3

In his reply memorandum of law, plaintiff also raises a Due
Process argument (Plaintiff's Reply Memorandum of Law in Support
of Motion to Sever, dated Jan. 11, 2016 (D.I. 262), at 3-4).
Because this argument is first raised in plaintiff's reply
papers, I do not consider it. The Second Circuit "has made clear
it disfavors new issues being raised in reply papers." Rowley v.
City of New York, 00 Civ. 1793 (DAB), 2005 WL 2429514 at *5
(S.D.N.Y. Sept. 30, 2005) (Batts, D.J.), citing Keefe v. Shalala,
71 F.3d 1060, 1066 n.2 (2d Cir. 1995), Knipe v. Skinner, 999 F.2d
708, 711 (2d Cir. 1993), Nat'l Labor Relations Bd. v. Star Color
Plate Serv., 843 F.2d 1507, 1510 n.3 (2d Cir. 1988), United
States v. Letscher, 83 F. Supp. 2d 367, 377 (S.D.N.Y. 1999)
(Koeltl, D.J.), Domino Media, Inc. v. Kranis, 9 F. Supp. 2d 374,
387 (S.D.N.Y. 1998) (Kaplan, D.J.), aff'd, 173 F.3d 843 (2d Cir.
1999) and Playboy Enters., Inc. v. Dumas, 960 F. Supp. 710, 720
(S.D.N.Y. 1997) (Kaplan, D.J.), aff'd, 159 F.3d 1347 (2d Cir.
1998).
3

III.

Analysis

A.

The FELA Does Not Bar
Bar Third-Party Claims
Against Parties that Are
Not Employees of the Railroad

Plaintiff's principal argument -- that the FELA precludes a railroad from seeking indemnity or contribution from
parties who are not employees of the railroad -- is contradicted
by the very cases on which he relies.
Plaintiff's argument has its genesis in Section 55 of
the FELA which provides:
Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable
any common carrier to exempt itself from liability
created by this Chapter, shall to that extent be void.
45 U.S.C. § 55.

Plaintiff's theory appears to be that permitting

a defendant railroad to seek contribution or indemnity is a
device that enables the railroad to exempt itself from liability
and, thus, a railroad's assertion of a third-party claim is
prohibited.
The fundamental flaw in this argument is that it
equates contribution and indemnity with an exemption from liability.

However, "[i]ndemnification against liability is not the

same as exemption from liability."
F. Supp. 92, 95 (D. Md. 1987).

Mead v. Nat'l R.R. Corp., 676

Contrary to plaintiff's argument,
4

a claim for contribution or indemnity does not even accrue until
the party asserting the claim has paid the underlying liability.
SPV OSUS Ltd. v. UBS AG, 15 Civ. 619 (JSR), 2015 WL 4079079 at *3
(S.D.N.Y. July 1, 2015) (contribution); s.a.r.l. Orliac v.
Winebow, Inc., 595 F. Supp. 470, 473 (S.D.N.Y. 1984) (Canella,
D.J.) (indemnity).

Because the predicate for a contribution or

indemnity claim is a finding that the party seeking contribution
or indemnity is liable, a claim for contribution or indemnity
cannot, as a matter of logic, operate as an to create an exemption from liability.
One of the principal case on which plaintiff relies is
Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135 (2003).
not support plaintiff's theories.

It does

In that case, six former

employees of the defendant railroad had contracted asbestosis and
alleged that they had been exposed to asbestos while working for
the railroad.

Two of the plaintiffs also had significant expo-

sure to asbestos while working for other employers.

When the

case was submitted to the jury, the trial court refused the
railroad's "request to instruct the jury to apportion damages
between [the railroad] and other employers alleged to have
contributed to an asbestosis claimant's disease."
143.

5

538 U.S. at

Although Ayers clearly held that the FELA precludes a
railroad from seeking apportionment in response to a claim by an
employee, it endorsed the railroad's right to seek contributions
from other tortfeasors who may have contributed to plaintiff's
injury.

For example, the Court stated its conclusion as follows:

"[t]he FELA's express terms, reinforced by consistent judicial
applications of the Act, allow a worker to recover his entire
damages from a railroad whose negligence jointly caused an injury
. . . , thus placing on the railroad the burden of seeking
contribution from other tortfeasors."

538 U.S. at 141 (emphasis

added).
Similarly, in further support of its conclusion, the
Court stated:
The federal and state reporters contain numerous FELA
decisions stating that railroad employers may be held
jointly and severally liable for injuries caused in
part by the negligence of third parties, and even more
recognizing that FELA defendants may bring indemnification and contribution actions against third parties
under otherwise applicable state or federal law. Those
third-party suits would have been unnecessary had the
FELA itself authorized apportionment.

6

538 U.S. at 162-63 (footnotes omitted).4

The Court's approving

citation of these third-party actions is incomprehensible if the
Court were concluding that the FELA precluded third-party claims
against non-employees.
Finally, in responding to the railroad's argument that
denying apportionment and requiring a railroad to seek contribution or indemnity through a third-party action would be wasteful,
the Court noted that "FELA defendants may be able to implead
third parties and thus secure resolution of their contribution
action in the same forum as the underlying FELA actions."
U.S. at 165 n.23.

538

Again, the Court's language makes no sense if

the Court were concluding that the FELA categorically precluded a
railroad from seeking contribution or indemnity in an FELA case.
In support of his argument, plaintiff cites a number of
decisions in FELA cases in which a railroad's third-party claims
for contribution or indemnity have been stricken.

4

Virtually all

In a footnote appended to the end of the first sentence of
the passage quoted in text, the Court cited nineteen decisions
from state and federal courts in which railroads asserted thirdparty claims and an ALR annotation. Among the cases cited by the
Court was Patterson v. Pennsylvania R. Co., 197 F.2d 252, 253 (2d
Cir. 1952), an FELA action in which the Court of Appeals for the
Second Circuit affirmed a judgment entered against the thirdparty defendant on a railroad's third-party claim for
contribution. There is no suggestion anywhere in the Ayers
opinion that any of these decisions involving third-party claims
by a defendant railroad violated the FELA.
7

of these cases, however, involve a railroad's claim for contribution or indemnity against a fellow employee of the injured
plaintiff.5

This is an important distinction because the FELA

eliminated the "fellow-servant rule."6

Norfolk & Western R.R.

Co. v. Ayers, supra, 538 U.S. at 145; Sinkler v. Missouri Pac.
R.R. Co., 356 U.S. 326, 329-30 (1958).

Courts have, therefore,

routinely dismissed third-party contribution and indemnity claims
against a plaintiff's fellow employee because permitting such
claims would effectively permit railroads to benefit from the
fellow employee rule.

As explained by the court in Waisonovitz

v. Metro-N. Commuter R.R., supra, 462 F. Supp. 2d at 294-95:
Metro-North argues that FELA does not prohibit an
employer from seeking contribution or indemnification
from a co-employee. However, the cases cited by
Metro-North . . . involve claims of contribution or
5

The cases plaintiff cites that involve a railroad's
assertion of a contribution or indemnity claim against
plaintiff's fellow employee include In re Nat'l Maint. & Repair,
Inc., No. 09-0676-DRH, 2010 WL 456758 (S.D. Ill. Feb. 3, 2010),
aff'd nom., Deering v. Nat'l Maint. & Repair, Inc., 627 F.3d 1039
(7th Cir. 2010); Waisonovitz v. Metro-N. Commuter R.R., 462 F.
Supp. 2d 292 (D. Conn. 2006); Henson v. Baltimore & Ohio R.R.
Co., C.A. No. 84-2346, 1985 U.S. Dist. Lexis 21048 (E.D. Pa. Apr.
4, 1985); Shields v. Consolidated Rail Corp., 81 Civ. 4204 (CBM),
1981 U.S. Dist. Lexis 16734 (S.D.N.Y. Dec. 16, 1981) (Motley,
D.J.); Illinois Central Gulf R.R. Co. v. Haynes, 592 So. 2d 536
(Ala. 1991); Stack v. Chicago, Milwaukee, St. Paul & Pacific R.R.
Co., 94 Wash. 2d 155, 615 P.2d 457 (1980)
6

The fellow-servant rule precluded an employee from suing
his employer for injuries sustained as the result of the
negligence of a fellow servant. Coon v. Syracuse & Utica R.R.
Co., 5 N.Y. 492, 494 (1851)
8

indemnification against an outside third-party -- i.e.,
against a non-employee. Even the case Metro-North
appears to rely on most, Gaulden v. Burlington Northern, Inc., 232 Kan. 205, 654 P.2d 383 (1982), involved
the negligence of a third-party truck driver who was
involved in a crossing accident. In that case, the
Kansas Supreme Court noted that FELA did not provide
for contribution; however, "[t]he purpose of FELA, to
obligate an employer to pay damages when there is proof
that the employer's negligence played any part in
causing injury to an employee, is not defeated by
permitting the employer to recoup its losses in part or
in full from a third party, when the circumstances and
state law permit." Id. at 389. All the other cases
cited by Metro-North similarly allow contribution or
indemnification claims against third-parties who are
not employees of the railroad.
By contrast, since the purpose of FELA is "to
persuade railroad employers to exercise caution in
selecting and supervising its employees,"•Henson v.
Baltimore & Ohio R.R. Co., 1985 U.S. Dist. LEXIS 21048,
at *13 (W.D. Pa. 1985) (citing legislative history),
"to permit an employer to seek indemnification . . .
would violate the intent of Congress rather than foster
it."• Illinois Central Gulf R.R. Co. v. Haynes, 592
So.2d 536, 540 (Ala. 1991). Indeed, in construing 45
U.S.C. § 51, the Supreme Court has stated:
. . . .
. . . Thus while the common law had generally
regarded the torts of fellow servants as separate
and distinct from the torts of the employer, holding the latter responsible only for his own torts,
it was the conception of this legislation that the
railroad was a unitary enterprise, its economic
resources obligated to bear the burden of all
injuries befalling those engaged in the enterprise
arising out of the fault of any other member engaged in the common endeavor. Hence a railroad
worker may recover from his employer for an injury
caused in whole or in part by a fellow worker, not
because the employer is himself to blame, but
because justice demands that one who gives his
9

labor to the furtherance of the enterprise should
be assured that all combining their exertions with
him in the common pursuit will conduct themselves
in all respects with sufficient care that his
safety while doing his part will not be endangered. If this standard is not met and injury
results, the worker is compensated in damages.
Sinkler v. Missouri, 356 U.S. 326, 329-30, 78 S.Ct.
758, 2 L.Ed.2d 799 (1958). "It is thus apparent, both
from the plain language of the statute and from the
Supreme Court's interpretation thereof, that a railroad
is liable when injury to an employee results from the
negligence of a fellow employee." Shields v. Consolidated Rail Corp., 1981 U.S. Dist. LEXIS 16734, at *4
(S.D.N.Y. 1981). Metro-North's third-party complaint
is seeking that which FELA prohibits: "requiring an
employee, rather than a railroad employer, to compensate other employees for injuries suffered on the job."
Id. (granting motion to dismiss defendant's counterclaim for indemnification against one of the plaintiffs).
Thus, the cases that have dismissed third-party claims against a
plaintiff's fellow employees are immaterial to the third-party
claims asserted here.
The only case cited by plaintiff that warrants separate
discussion is Mancini v. CSX Transp., Inc., No. 08-CV-933, 2010
WL 2985964 (N.D.N.Y. July 27, 2010).

In that case, plaintiff was

injured when a vehicle driven by a fellow employee (Ketterer) was
struck by a third party (Ashwood).7

Plaintiff asserted claims

against Ketterer and Ashwood in addition to the defendant rail-

7

The material facts giving rise to the action are set forth
in an earlier decision reported at 2010 WL 1268021 (N.D.N.Y. Apr.
1, 2010).
10

road.

Ketterer and Ashwood settled with plaintiff prior to

trial, and the issue before the court was the effect of this
settlement on the railroad's third-party claims against Ketterer
and Ashwood for indemnity and contribution.

After noting that a

"'railroad [in an FELA action] may sue third parties for indemnification and contribution,'" 2010 WL 2985964 at *2, quoting
Krueger v. Soo Line R.R., No. 02-C-0611, 2005 WL 2234610 at *1
(E.D. Wis. Sept. 12, 2005), the Court held that the railroad's
contribution claims against Ashwood and Ketterer were barred by
New York General Obligations Law Section 15-108(b) which precludes a settling tortfeasor from both asserting claims for
contribution and being the subject of a claim for contribution.8
2010 WL 2985964 at *3.

With respect to the railroad's indemnity

claim against Ashwood, the Honorable Thomas J. McEvoy, United
States District Judge, noted that in order to be liable under the
FELA, the fact finder would have to conclude that the railroad

8

Section 15-108 provides in pertinent part:
(b) Release of tortfeasor. A release given in
good faith by the injured person to one tortfeasor . .
. relieves him from liability to any other person for
contribution as provided in article fourteen of the
civil practice law and rules.
(c) Waiver of contribution. A tortfeasor who has
obtained his own release from liability shall not be
entitled to contribution from any other person.
11

was guilty of some active negligence.

2010 WL 2985964 at *5.

However, Judge McEvoy concluded that such a finding would preclude an indemnity claim because, Judge McEvoy reasoned, indemnity only lies where the indemnitee is free from fault.

2010 WL

2985964 at *5.
I need not resolve whether Mancini controls here.9
issue before me is severance, not dismissal.

The

The third-party

defendants here have not entered into any settlement agreement,
and unlike defendant Ashwood in Mancini, they cannot invoke the
protection of New York General Obligations Law Section 15-108.
Thus, even if I make the generous assumption that Mancini precludes CSX's indemnity claim, Mancini clearly has no effect on

9

There is compelling authority within the Circuit indicating
that a railroad in an FELA action may be entitled to indemnity so
long as it is not guilty of active negligence. Ratigan v. New
York Cent. R.R. Co., 291 F.2d 548, 554 (2d Cir. 1961) (suggesting
that railroad may be entitled to indemnity from non-employee
third party where railroad is not guilty of active negligence);
Petty v. New York Cent. R.R., 322 F. Supp. 1324 (S.D.N.Y. 1970)
(Croake, D.J.), aff'd on opinion below, 438 F.2d 538 (2d Cir.
1971) (railroad indemnified by lessor for defective forklift that
caused railroad employee's injuries). See also V.G. Lewter,
Right of Railroad, Charged with Liability for Injury to or Death
of Employee under Federal Employer's Liability Act, to Claim
Indemnity or Contribution from other Tortfeasor, 19 A.L.R.3rd 928
§ 2 (originally published 1968) ("where the negligence of the
third party may be called the 'active' or 'primary' negligence
and that of the railroad 'passive' or 'secondary' negligence, it
has generally been held that the railroad against which liability
is sought by its injured employee may recover full indemnity from
the third party"). Plaintiff's memoranda of law does not address
these authorities.
12

CSX's contribution claims and does not, therefore, require a
severance.
Because there is no legal impediment to CSX's thirdparty claims, plaintiff's contention that severance is mandatory
fails.

B.

Potential Jury Confusion
Does Not Warrant a Severance

To the extent plaintiff's motion is addressed to the
Court's discretion, he has also failed to demonstrate circumstances warranting a severance.
Federal Rule of Civil Procedure 21 permits a court to
"sever any claim against a party."

While "[t]he decision

whether to grant a severance motion is committed to the sound
discretion of the trial court,"

New York v. Hendrickson Bros.,

Inc., 840 F.2d 1065, 1082 (2d Cir. 1988); accord Deajess Med.
Imaging P.C. v. Allstate Ins. Co., 03 Civ. 3920 (RWS), 2004 WL
2729790 at *2 (S.D.N.Y. Nov. 30, 2004) (Sweet, D.J.); Dawes v.
Pataki, 00 Civ. 2829 (SHS), 2004 WL 1562842 at *1 (S.D.N.Y. July
13, 2004) (Stein, D.J.); In re Worldcom, Inc. Sec. Litig., 02
Civ. 3288 (DLC), 2003 WL 1563412 at *3 (S.D.N.Y. Mar. 25, 2003)
(Cote, D.J.), "the Federal courts view severance as a 'procedural
device to be employed only in exceptional circumstances.'"

13

Wausau Bus. Ins. Co. v. Turner Constr. Co., 99 Civ. 0682 (RWS),
2001 WL 963943 at *1 (S.D.N.Y. Aug. 23, 2001) (Sweet, D.J.),
quoting Marisol A. v. Giuliani, 929 F. Supp. 662, 693 (S.D.N.Y.
1996) (Ward, D.J.), aff'd, 126 F.3d 372 (2d Cir. 1997); Cramer v.
Fedco Auto. Components Co., 01-CV-0757E (SR), 2002 WL 1677694 at
*1 (W.D.N.Y. July 18, 2002) ("[S]eparate trials are the exception
rather than the rule . . . ."); see United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 724 (1966) ("[J]oinder of claims, parties
and remedies is strongly encouraged" under the Federal Rules of
Civil Procedure.).
In choosing whether to exercise its discretion, the
district court is guided by "considerations of convenience,
avoidance of prejudice to the parties, and efficiency."

Hecht v.

City of New York, 217 F.R.D. 148, 150 (S.D.N.Y. 2003) (Koeltl,
D.J.); accord Deajess Med. Imaging, P.C. v. Geico Gen. Ins. Co.,
03 Civ. 7388 (DF), 2005 WL 823884 at *2 (S.D.N.Y. Apr. 7, 2005)
(Freeman, M.J.); Dawes v. Pataki, supra, 2004 WL 1562842 at *1.
Thus, courts consider the following factors when determining
whether severance is appropriate:
(1) whether the claims arise out of the same transaction or occurrence, (2) whether the claims present
common questions of fact or law, (3) whether severance
would serve judicial economy, (4) prejudice to the
parties caused by severance, and (5) whether the claims
involve different witnesses and evidence.

14

Boston Post Road Med. Imaging, P.C. v. Allstate Ins. Co., 03 Civ.
3923 (RCC), 2004 WL 1586429 at *1 (S.D.N.Y. July 15, 2004)
(Casey, D.J.), citing Preferred Med. Imaging, P.C. v. Allstate
Ins. Co., 303 F. Supp. 2d 476, 477 (S.D.N.Y. 2004) (Marrero,
D.J.) and In re Merrill Lynch & Co., Research Reports Secs.
Litig., 214 F.R.D. 152, 154-55 (S.D.N.Y. 2003) (Pollack, D.J.);
see also Fed. R. Civ. P. 20(a); Fong v. Rego Park Nursing Home,
95 Civ. 4445 (SJ), 1996 WL 468660 at *2 (E.D.N.Y. Aug. 7, 1996)
("Although Rule 21 is silent about the grounds for misjoinder,
courts have held that [claims] are misjoined when they fail to
satisfy [the requirements of] Rule 20(a)."); United States v.
Yonkers Bd. of Educ., 518 F. Supp. 191, 195-96 (S.D.N.Y. 1981)
(Sand, D.J.) (analyzing the appropriateness of severance pursuant
to Rule 21 in conjunction with the requirements of Rule 20(a)).
An analysis of these factors demonstrates that severance is not
appropriate here.
Whether the claims arise out of the same transaction or
occurrence.

The occurrence that gives rise to the plaintiff's

claim and the third-party claims is the alleged malfunctioning of
the chair when plaintiff attempted to sit in on November 8, 2011.
Whether the claims present common questions of fact or
law.

The characteristics of the chair, how and why the chair

moved when plaintiff attempted to sit in it and what injuries, if
15

any, resulted from the accident are questions common to both sets
of claims.
Plaintiff and third-party defendants make much of the
differences in the legal principles applicable to plaintiff's
FELA claims against CSX and CSX's third-party claims and argue
that there is a potential for jury confusion and misapplication
of the appropriate legal principles.

Third-party defendants

argue that the jury may erroneously apply the more liberal FELA
standards of negligence and causation to the third-party claims,
while plaintiffs argue that the jury may erroneously apply the
more stringent breach-of-warranty and products liability standards to plaintiff's FELA claims against CSX.

I do not find

these arguments persuasive.
Asking a jury to apply different legal standards to
different claims is not unusual in this District.

Juries in this

District frequently consider discrimination cases in which
plaintiffs assert claims under both Title VII and the New York
City Administrative Code despite the fact that the standard for
liability is substantially more liberal under the latter than the
former.

See Chen v. City University of New York, 805 F.3d 59, 75

(2d Cir. 2015).

Juries also routinely untangle legal and factual

issues that are exponentially more complicated than those involved in this case.

For example, in United States v. Parse, 789
16

F.3d 83, 123-24 (2d Cir. 2015), a criminal tax case, the jury was
asked to consider 25 counts against one or more of five defendants, requiring 58 separate verdicts.

See also United States v.

Al Fawwaz, S7 98 Crim. 1023 (LAK), 2013 WL 3111043 (S.D.N.Y. June
20, 2013) (severance denied in criminal case involving 308 counts
against 2 defendants).10

Although different legal standards may

apply to plaintiff's claims and CSX's claims, those differences
are not so great that there is a high probability of jury confusion given the complexity of the cases juries regularly resolve
in this District.
Finally, to the extent there is any risk for juror
confusion or the misapplication of legal principles, that risk
can be minimized by special interrogatories to the jury which
will remind them of the standards applicable to each claim.11
Whether severance would serve judicial economy.
Severance will not serve judicial economy.

Although there may

not be a substantial difference between the time required to try

10

All jurors in this District are selected from the same
pool. Thus, the fact that Parse and Al Fawwaz were criminal
cases is immaterial.
11

I also note that a number of judges in this District
routinely provide jurors with written copies of the charge and
permit the jurors to retain those copies during their
deliberations. If followed here, that practice would provide
additional protection against the possible misapplication of the
law.
17

all claims together and the time required to try the third-party
claims separately, separate trials would require the District
Judge assigned to this matter to preside over two separate jury
empanelments, to instruct two juries and to preside over two jury
deliberations.

Thus, severance would create a greater demand on

the time of the Court.

In addition, the facts underlying the

case, i.e., how plaintiff came to be injured, would necessarily
have to be adduced at both trials.

Thus, severance would create

unnecessary demands on judicial time.
Prejudice to the parties caused by severance.

The only

prejudice cited by counsel is the potential of jury confusion
resulting from the different standards applicable to the main
claims and the third-party claims.

This issue is discussed

above.
Whether the claims involve different witnesses and
evidence.

Without citing any authority whatsoever, plaintiff

argues that certain expert testimony that may be admissible with
respect to the FELA claims may be inadmissible with respect to he
third-party claims.
Plaintiff's argument improperly conflates the standards
for the admissibility of evidence under the Federal Rules of
Evidence with the substantive law applicable to the FELA claim
and the third-party claims.

"The standard of causation under
18

FELA and the standards for admission of expert testimony under
the Federal Rules of Evidence are distinct issues and do not
affect one another."

Claar v. Burlington N. R.R. Co., 29 F.3d

499, 503 (9th Cir. 1994); accord Wills v. Amerada Hess Corp., 379
F.3d 32, 47 (2d Cir. 2004); see also Taylor v. Consol. Rail
Corp., 114 F.3d 1189 (table), 1997 WL 321142 at *7 (6th Cir.
1997) ("Simply put, [plaintiff] has confused the FELA standard of
causation with the standard for admission of expert testimony.
It is well established that the latter is controlled -- even in
cases arising under FELA -- by the Federal Rules of Evidence and
the seminal case of Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)."); DeRienzo v.
Metro. Transp. Auth., 694 F. Supp. 2d 229, 235 (S.D.N.Y. 2010)
(Leisure, D.J.) ("The relaxed standard of proof applicable to
FELA actions does not alter the requirement that expert testimony
meet the standards set forth in Federal Rule of Evidence 702.").
Thus, the same evidentiary standards apply to all the claims in
the case.
Summary.

Virtually all the relevant factors indicate

that severance is not warranted in this case.

19

Severing the

third-party claims would only multiply the burden on the Court 12
without any countervailing benefit.

IV.

Conclusion

Accordingly, for all the foregoing reasons, plaintiff's
motion to sever the third-party claims is denied in all respects.
The Clerk of the Court is respectfully requested to mark Docket
Item 209 closed.
Dated:

New York, New York
September 14, 2016
SO ORDERED

United States Magistrate Judge
Copies transmitted to:
All Counsel

Severance would also multiply the burden on the public
because it would require the impanelment of two juries.
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