Caserto v. Metro-North Railroad Company

Filing 31

MEMORANDUM OPINION AND ORDER re: 23 MOTION for Summary Judgment and to Preclude Dr. Kelmanovich filed by Metro-North Railroad Company: For the foregoing reasons, Defendant's motions for summary judgment and to preclude Dr . Kelmanovich's testimony are DENIED. Per the Case Management Plan and Scheduling Order (Docket No. 9), within thirty days of this Memorandum Opinion and Order, the parties shall submit to the Court for its approval a Joint Pretrial Order pre pared in accordance with the Court's Individual Rules and Practices and Rule 26(a)(3) of the Federal Rules of Civil Procedure. The parties shall also follow Paragraph 5 of the Court's Individual Rules and Practices, which identifies subm issions that must be made at or before the time of the Joint Pretrial Order, including any motions in limine. If this action is to be tried before a jury, joint requests to charge, joint proposed verdict forms, and joint proposed voir dire question s shall be filed on or before the Joint Pretrial Order due date in accordance with the Court's Individual Rules and Practices. Jury instructions may not be submitted after the Joint Pretrial Order due date, unless they meet the standard of Ru le 51(a)(2)(A) of the Federal Rules of Civil Procedure. If this action is to be tried to the Court, proposed findings of fact and conclusions of law shall be filed on or before the Joint Pretrial Order due date in accordance with the Court's Individual Rules and Practices. Unless the Court orders otherwise for good cause shown, the parties shall be ready for trial two weeks after the Joint Pretrial Order is filed. Finally, if the parties are interested in a settlement conference before Magistrate Judge Maas, they shall so advise the Court by joint letter as soon as possible. The Clerk of Court is directed to terminate Docket No. 23. (Signed by Judge Jesse M. Furman on 2/2/2016) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MICHAEL CASERTO,
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Plaintiff,
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-v:
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METRO-NORTH RAILROAD COMPANY,
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Defendant.
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02/02/2016

14-CV-7936 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
Plaintiff Michael Caserto, an electrician, sues his employer Metro-North Railroad
Company (“Defendant” or “Metro-North”) under the Federal Employers’ Liability Act (the
“FELA”), alleging that Defendant’s negligence in failing to remedy or warn employees about
loose ballast on a cable duct used by many employees as a walkway in one of Defendant’s
railway yards caused him injuries. Defendant moves to preclude Plaintiff’s proposed expert
witness, Dr. Victor Kelmanovich, and for summary judgment. Upon review of the parties’
submissions, Defendant’s motions are both DENIED.
Defendant’s motion to preclude the testimony of Dr. Kelmanovich is easily rejected.
First, to the extent that Defendant objects to the nature and extent of Dr. Kelmanovich’s
disclosures, the objections are misplaced as the disclosures plainly pass muster under the less
rigorous standards that apply to treating physicians. See Fed. R. Civ. P. 26(a)(2); Roman v.
Sprint Nextel Corp., No. 12-CV-276 (VEC), 2014 WL 5026093, at *10 (S.D.N.Y. Sept. 29,
2014); DeRienzo v. Metro. Transp. Auth., 694 F. Supp. 2d 229, 236 (S.D.N.Y. 2010). More
broadly, although there is some substance to Defendant’s complaint that Dr. Kelmanovich’s

report is thin in disclosing his underlying methodology (see Mem. Law Supp. Mot. To Preclude
Dr. Kelmanovich & Summ. J. (Docket No. 26) 16), that is not a basis to preclude his opinion
testimony in this case. Dr. Kelmanovich’s causation opinions are based on a thorough review of
Plaintiff’s medical history and reasonable inferences from that history, Plaintiff’s reported
injuries, and treatment results. In fact, the causal connection between the incident at issue and
Plaintiff’s injuries — an immediately swollen ankle followed by blisters on the same foot that
became infected (due, perhaps in part, to Plaintiff’s vulnerabilities as a diabetic with a history of
orthopedic problems) — would arguably “be obvious to the layman.” Tufariello v. Long Island
R.R. Co., 458 F.3d 80, 88 (2d Cir. 2006) (internal quotation marks omitted); see Roman, 2014
WL 5026093, at *11; Romanelli v. Long Island R.R. Co., 898 F. Supp. 2d 626, 631 (S.D.N.Y.
2012). To the extent that Defendant takes issue with Dr. Kelmanovich’s conclusions, its
objections ultimately go to the weight of his testimony, not its admissibility. See, e.g.,
McCullock v. H.B. Fuller Co., 61 F.3d 1039, 1044 (2d Cir. 1995) (“Disputes as to the strength of
[an expert’s] credentials, faults in his use of different etiology as a methodology, or lack of
textual authority for his opinion, go to the weight, not the admissibility, of his testimony.”).
In light of the standards applicable to summary judgment generally, see, e.g., Louis
Vuitton Malletier, S.A. v. My Other Bag, Inc., — F. Supp. 3d —, No. 14-CV-3419 (JMF), 2016
WL 70026, at *2 (S.D.N.Y. Jan. 6, 2016), and to summary judgment on claims under the FELA
in particular, see, e.g., CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2636 (2011); Williams v.
Long Island R.R. Co., 196 F.3d 402, 407 (2d Cir. 1999); Syverson v. Consol. Rail Corp., 19 F.3d
824, 826 (2d Cir. 1994), Defendant’s motion for summary judgment is also easily rejected. Put
simply, there are disputes of material fact with respect to the issues of notice, foreseeability, and
causation. Among other things, Kirk Fleming and Christopher Giuliani, the railway yard

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superintendent and foreman, respectively, both testified that they were aware that Metro-North
employees used the cable duct as a walkway and that pieces of ballast ended up on the duct. (See
Pl.’s Mem. Opp’n Metro North’s Mot. Summ. J. (Docket No. 27) (“Pl.’s Mem.”), Ex. 6, at 17;
id., Ex. 2, at 5, 19, 21; id., Ex. 7, at 5, 21, 25-26). Given that, and common sense, a reasonable
jury could find that Defendant was on notice of an unreasonably dangerous condition, that the
risk of ankle injury was reasonably foreseeable, and that Defendant’s negligence (in failing to
remedy the condition and failing to warn) was a cause of Plaintiff’s injuries. See, e.g., Rogers v.
Mo. Pac. R.R. Co., 352 U.S. 500, 503 (1957) (holding that evidence of a work surface covered
by uneven gravel supported a jury finding of negligence); Williams, 196 F.3d at 407 (failing to
remedy slippery railroad ties the railroad knew or should have known employees frequently used
as makeshift steps was potentially negligent); Parson v. CSX Transp., Inc., 714 F. Supp. 2d 839,
844 (N.D. Oh. 2010) (denying the defendant’s motion for summary judgment because uneven
ballast was potentially dangerous). 1 To be sure, there is evidence supporting Defendant’s
arguments — including, for example, Plaintiff’s own statements in applications for disability
benefits that his injuries were not work-related (which would be admissible pursuant to Rule
801(d)(2) of the Federal Rules of Evidence, albeit not for mitigation of damages, see, e.g., Mills
v. Energy Transp. Corp., 29 F. App’x 744, 745 (2d Cir. 2002) (summary order)). But it is for a
jury at trial, not this Court on summary judgment, to decide if those arguments carry the day.
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In his memorandum of law in opposition to the motion for summary judgment, Plaintiff
contends that Defendant was negligent not only in failing to cure the condition and to warn, but
also in failing to properly evaluate his fitness to work. (Pl.’s Mem. 6-8). That theory of
negligence, however, is absent from Plaintiff’s Complaint. (See Compl. (Docket No. 4) ¶¶ 1415). As a party may not amend a complaint through his memorandum of law in opposition to
summary judgment, see, e.g., Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998),
Plaintiff may not pursue that theory of negligence, see Lyman v. CSX Transp., Inc., 364 F. App’x
699, 701 (2d Cir. 2010) (summary order) (affirming the district court’s decision not to reach
negligent assignment claim raised for the first time in opposition to summary judgment).

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For the foregoing reasons, Defendant’s motions for summary judgment and to preclude
Dr. Kelmanovich’s testimony are DENIED. Per the Case Management Plan and Scheduling
Order (Docket No. 9), within thirty days of this Memorandum Opinion and Order, the parties
shall submit to the Court for its approval a Joint Pretrial Order prepared in accordance with the
Court’s Individual Rules and Practices and Rule 26(a)(3) of the Federal Rules of Civil
Procedure. The parties shall also follow Paragraph 5 of the Court’s Individual Rules and
Practices, which identifies submissions that must be made at or before the time of the Joint
Pretrial Order, including any motions in limine.
If this action is to be tried before a jury, joint requests to charge, joint proposed verdict
forms, and joint proposed voir dire questions shall be filed on or before the Joint Pretrial Order
due date in accordance with the Court’s Individual Rules and Practices. Jury instructions may
not be submitted after the Joint Pretrial Order due date, unless they meet the standard of Rule
51(a)(2)(A) of the Federal Rules of Civil Procedure. If this action is to be tried to the Court,
proposed findings of fact and conclusions of law shall be filed on or before the Joint Pretrial
Order due date in accordance with the Court’s Individual Rules and Practices. Unless the Court
orders otherwise for good cause shown, the parties shall be ready for trial two weeks after the
Joint Pretrial Order is filed.
Finally, if the parties are interested in a settlement conference before Magistrate Judge
Maas, they shall so advise the Court by joint letter as soon as possible.
The Clerk of Court is directed to terminate Docket No. 23.

SO ORDERED.
Date: February 2, 2016
New York, New York

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