Moody v. CSX Transportation, Inc. et al
DECISION & ORDER Defendants' motion to exclude Timko's testimony 65 is granted in part and denied in part. Moody's motion for sanctions 68 is granted. Defendants' motion to bifurcate the trial 98 is denied. Signed by Hon. Marian W. Payson on 9/21/2017. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WAKEESHA N. MOODY,
DECISION & ORDER
CSX TRANSPORTATION, INC., NEW
YORK CENTRAL LINES, LLC and NYC
Plaintiff Wakeesha N. Moody (“Moody”) has sued defendants CSX
Transportation, Inc. (“CSX”), New York Central Lines, LLC, and NYC Newco, Inc.,
(collectively, “defendants”) for personal injuries sustained in a railway accident. (Docket # 1-2).
On June 16, 2006, Moody attempted to crawl underneath a train car located in a railyard operated
by CSX in Lyons, New York (the “Lyons yard”). The train car began moving while Moody was
beneath it, and she was dragged approximately twenty feet, resulting in injuries including an
above-the-knee amputation of her left leg and the loss of toes on and crush injuries to her right
leg. Following the Court’s entry of a Decision and Order granting in part and denying in part
defendants’ motion for summary judgment (Docket # 90), the only claims that remain are for
failure to warn by sounding a horn or bell prior to moving the train car and for failure to post
appropriate warning signage in the Lyons yard.
Currently pending before this Court are three motions. (Docket ## 65, 68, 98).
First, defendants have moved to exclude testimony from Moody’s expert Stephen Timko
(“Timko”) on the grounds that Timko’s proffered opinions are not appropriate subjects for expert
testimony and do not meet the standards for admissibility established by Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993). (Docket # 65). Second, Moody has moved for spoliation
sanctions. (Docket # 68).1 Finally, defendants have moved to bifurcate the trial and try the issue
of liability first and proceed only to the issue of damages in the event the jury determines that
defendants are liable. (Docket # 98). Oral argument on the three pending motions was held on
August 2, 2017. (Docket # 105).
Defendants’ Motion to Exclude Testimony from Timko
Moody has disclosed Timko as an expert witness who is expected to testify at
trial. (Docket # 65-2). Timko has 49 years of experience in the railroad industry, and for the last
16 years has owned a railroad consulting service. (Id. at 5). His prior experience includes
serving as the Vice President and General Manager of Western New York & Pennsylvania RR,
LLC, Assistant Superintendent for Train Operations for the Norfolk Southern Railroad, and
Manager of Operations Planning for Conrail. (Id. at 6). According to Timko’s expert report, his
opinions are based on his knowledge, experience, and training, as well as his review of the
following information: the deposition transcripts of Moody, witness Tiffany Johnson, CSX
conductor Richard Roden, CSX engineer Frederick Albrecht, CSX police officer Gary
Gawronski, and CSX police officer Alan Lee; CSX’s responses to plaintiff’s notices to produce
Moody’s motion was initially filed as a cross-motion to defendants’ motion for summary judgment.
(Docket # 68). In its Decision and Order, the Court reserved decision on this issue. (See Docket # 90 at 27).
and interrogatories; the Lyons Police Department accident report; the statements of Sheldon
Davis, Tiffany Johnson, Joseph Monk, Richard Roden, and Frederick Albrecht; the tax map of
the Lyons yard; photographs of the Lyons yard; a diagram of the Lyons yard; a video of the
Lyons yard and surrounding area taken in 2008; and, his field inspection of the Lyons yard made
from public property on January 17, 2015. (Id. at 9-10). Timko’s expert report includes the
following opinions: CSX failed to properly inform, educate, observe, and enforce a ban on
pedestrian traffic at the Lyons yard; CSX failed to enlist the assistance of both the Lyons Police
Department and the Wayne County Sheriff’s Office to prevent pedestrian traffic at the Lyons
yard; CSX failed to educate local political officials, media personnel, law enforcement
personnel, local residents, and its own employees by sponsoring Operation Lifesaver events in
Lyons;2 CSX failed to erect fences or barricades to prohibit the movement of the public onto the
rail lines and railroad property in Lyons; CSX failed to properly post the Lyons yard with signs
indicating potential dangers to the public; CSX failed to acknowledge observations by their own
agents and other employees that the Lyons yard was used as a “private sidewalk for local
residents”; CSX failed to properly train its agents and officers in order to protect the integrity of
evidence in the event of an accident, specifically locomotive video equipment, downloadable
event recorder information, and audio recordings; CSX failed to properly dispatch personnel,
gather and protect evidence, and document the accident scene; and, CSX failed to ensure that its
operating personnel, including train and engine service crews, comply with the operating rules,
safety rules, and other issued special instructions, notices, and bulletins. (Id. at 10-11).
As noted above, in light of the Court’s decision on defendants’ motion for
summary judgment, the only claims that remain in this matter are for failure to warn by sounding
Operation Lifesaver is “a nonprofit public safety education and awareness organization dedicated to
reducing collisions, fatalities and injuries at highway-rail crossings and trespassing on or near railroad tracks.”
Operation Lifesaver, About Us, https://oli.org/about-us (last accessed September 20, 2017).
a horn or bell prior to moving the train car and for failure to post appropriate warning signage in
the Lyons yard. (Docket # 90 at 26-27). Moody’s counsel acknowledged at oral argument that
Timko’s opinions unrelated to these two claims are no longer relevant. Accordingly, the Court
has limited its recitation of the facts to those relevant to the remaining claims.
Timko was deposed on November 17, 2015. (Docket # 65-3). Timko testified
that in order to prepare his report, he spent several hours reviewing materials related to this case,
including photographs, police reports, maps, and statements regarding the accident scene, and
that he performed an inspection at the Lyons yard on January 17, 2015. (Id. at 83-87).
According to Timko, his inspection of the Lyons yard occurred from public property, and he did
not enter railroad property at any time. (Id. at 85-86).
Timko testified that CSX had a “lackadaisical attitude toward public safety” at the
Lyons yard and that despite having received numerous reports of pedestrians in the yard
(prompting the CSX Police Department to refer to the Lyons yard as a “public sidewalk”), CSX
took no action to address the issue. (Id. at 106). According to Timko, when he visited the Lyons
yard, he observed footprints in the snow and individuals walking through the yard, with nobody
policing the station. (Id. at 106-07). He testified that he saw an adult man walk across the track.
(Id. at 107-08).
Timko objected to the characterization of pedestrians in the Lyons yard as
“trespassers,” explaining that “you can’t be a trespasser unless it’s posted.” (Id. at 126).
Because there were no “No Trespassing” signs posted at the Lyons yard, Timko opined that
pedestrians had no way of knowing they were not permitted to cross, and Moody was therefore
not trespassing at the time of her accident. (Id. at 127-28). Timko later acknowledged, however,
that he did not know whether there were “No Trespassing” signs posted and stated that his
opinion would be the same whether there were “some or none or lots” of such signs. (Id. at
130-31). Timko stated that it was necessary, in addition to posting signs, to educate people about
the dangers because it is impossible to fence in the entire right-of-way. (Id. at 131-32). Timko
further testified that CSX could have posted signs in the Lyons yard stating, “No Access,” “Use
Bridge,” “Use Route 14 Bridge,” “Private Property,” “Dangerous,” “High Speed Trains,” or
similar warnings. (Id. at 155-56). Timko continued that CSX could have posted a sign saying
“Dangerous area, Do not enter tracks” or “any kind of signage you want to put up there.” (Id. at
157). Timko elaborated that the warning signs “could have said something like, ‘dangerous,
high-speed traffic area – high speed trains’” and that CSX “needed to do some education.” (Id.
at 159). Timko also opined that, in his experience, it was standard practice in the railroad
industry to put up signs posting private property. (Id. at 142-43).
Timko also submitted an affidavit dated April 1, 2016, in opposition to
defendants’ motion. (Docket # 69-5). In his affidavit, Timko alleges that the answers he gave at
his deposition do not represent his full and complete opinions. (Id. at ¶ 2). Timko states that on
June 15-16, 2006, good and accepted standards of practice required defendants to sound the train
horn and bell just prior to moving the train and that defendants’ failure to do so was a deviation
from such good and accepted standards of practice. (Id. at ¶¶ 3, 5). Timko further states that
CSX is a full member of the Northeast Operating Rules Advisory Committee (“NORAC”) and
attaches for the Court’s review a copy of the NORAC operating rules that were in place on June
15-16, 2006. (Id. at ¶¶ 6-7, Ex. A). Timko explains that NORAC operating rules 19 and 20
required the locomotive engine bell and horn to be sounded before train movement and that
defendants’ internal rules imposed a similar requirement. (Id. at ¶¶ 9-10). Timko also opines
that good and accepted standards of practice required defendants to post signs in and around the
Lyons yard stating, e.g., “No Trespassing,” “Private Property,” and “Danger,” in order “to serve
as a warning to pedestrians about dangers in the Yard that they may not appreciate.” (Id. at
The Parties’ Positions
Defendants ask the Court to exclude Timko’s opinions and testimony in their
entirety. (Docket # 65-4 at 1-2). Defendants contend that Timko’s opinions, by his own
admissions, are based on “nothing more than his review of litigation documents, an internet
search and observations he was able to make while seated briefly in his car parked off railroad
property on a cold winter day some nine years after the incident.” (Docket # 65-4 at 2).
Defendants further argue that: (1) the subject matters on which Timko seeks to opine are matters
that the jury can discern without the need for expert testimony; (2) Timko’s opinions are based
on an incomplete and/or incorrect understanding of the evidence; (3) Timko has applied no
reliable methodology but has instead relied upon speculation; and, (4) none of Timko’s opinions
are supported by scientific or technical evidence. (Id. at 3).
As a threshold matter, defendants maintain that Timko’s proffered opinions are
not proper subjects of expert testimony. (Id. at 6). Defendants argue that “[t]he role of an expert
is to fill specific gaps in the jury’s knowledge about technical matters that are outside the ken of
the average juror” and that “[a] jury is perfectly competent to determine whether warnings were
given, whether a fence was erected, whether [CSX] trained its personnel, and whether [CSX]
acknowledged observations about the nature of the short-cut [Moody] used.” (Id. at 6-7).
Defendants further argue that Timko’s testimony would serve only to “bolster [Moody’s] claim
by attaching an ‘expert’ label to it.” (Id. at 7).
Defendants also argue that Timko’s proffered opinions do not satisfy the Daubert
standard for admissibility. (Id. at 9). According to defendants, “there is no scientific theory, let
alone one that has been tested with reliable certainty, that supports Timko’s proposed
testimony.” (Id. at 11). Defendants further contend that Timko has offered only conclusory
observations and that his opinions are not supported by “any recognized theory or methodology.”
With respect to Timko’s opinions regarding CSX’s alleged failure to warn,
defendants argue that they should be excluded because (1) Timko improperly opines on legal
conclusions, and (2) Timko’s opinions lack an evidentiary basis and are based solely on
speculation and ipse dixit. (Docket ## 65-4 at 13-14; 76 at 7-12).
Moody counters that Timko’s testimony is admissible under Daubert because
Timko is qualified as an expert and his testimony is reliable and will assist the trier of fact.
(Docket # 70 at 5-10). Specifically, Moody argues that Timko has “specialized knowledge,”
gained from his extensive experience in the railroad industry, that will help inform the jury
regarding the relevant industry standard for railroads. (Id. at 7-9). With respect to Timko’s
opinions regarding CSX’s alleged failure to sound a bell or horn, Moody maintains that they are
based upon the testimony of Moody and witness Tiffany Johnson, and that defendants’
arguments regarding Timko’s factual assumptions go to the weight of the testimony, not its
admissibility. (Id. at 11). Additionally, Moody argues that testimony as to legal conclusions is
not inadmissible per se and that Timko’s opinions fall within the ambit of his training and
experience. (Id. at 10-11). With respect to Timko’s opinions regarding the failure to post signs,
Moody argues that defendants have mischaracterized his testimony and that he should be
permitted to opine that accepted standards of care required defendants to post warning signs. (Id.
Rule 702 of the Federal Rules of Evidence requires that a proposed expert witness
be qualified on the basis of “scientific, technical, or other specialized knowledge [that] will help
the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702.
Accordingly, an expert may provide testimony 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
expert has reliably applied the principles and methods to the facts of the case.” Id. The trial
court must fulfill a “gatekeeping” duty under Rule 702 to ensure that any expert testimony to be
admitted is “not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at
589; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Thus, the trial
court’s inquiries should focus on three issues: “(1) whether the witness is qualified to be an
expert; (2) whether the opinion is based upon reliable data and methodology; and (3) whether the
expert’s testimony on a particular issue will assist the trier of fact.” Arista Records LLC v. Lime
Grp. LLC, 2011 WL 1674796, *1 (S.D.N.Y. 2011) (citing Nimely v. City of New York, 414 F.3d
381, 396-97 (2d Cir. 2005)).
Under Daubert and Kumho Tire, a court must “first determine whether the
proffered expert testimony is relevant.” Am. Ref-Fuel Co. of Niagara, LP v. Gensimore
Trucking, Inc., 2008 WL 1995120, *3 (W.D.N.Y. 2008). Further, the testimony must “help the
trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702; see
also Daubert, 509 U.S. at 591; Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 184 (2d
Cir. 2001). The question is one of “fit,” meaning that the evidence must be “sufficiently tied to
the facts of the case.” Daubert, 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d
1224, 1242 (3d Cir. 1985)). Where an expert opinion is based upon assumptions that are not
present in the case, the opinion “cannot be said to ‘assist the trier of fact’ as Rule 702 requires.”
Elcock v. Kmart Corp., 233 F.3d 734, 756 n.13 (3d Cir. 2000). Thus, such an opinion “misleads
the fact-finder and arguably does not comply with the ‘fit’ requirement of that Rule.” Id.
After determining that the proffered testimony is relevant, the court must
determine whether the proffered testimony “has a sufficiently ‘reliable foundation’ to permit it to
be considered.” Am. Ref-Fuel Co. of Niagara, LP v. Gensimore Trucking, Inc., 2008 WL
1995120 at *3 (quoting Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d at 184-85). The
court has “considerable leeway” in deciding how best to make that determination. Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. at 152. In determining reliability, the trial court must “focus
on the principles and methodology employed by the expert, without regard to the conclusions the
expert has reached or the [court’s] belief as to the correctness of those conclusions.”
Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002). To assist courts in
making this determination, the Supreme Court has identified the following factors to consider in
determining the reliability of the methodology used by a proffered expert: “(1) whether the
theory or technique can be tested; (2) whether the theory or technique has been subjected to peer
review and publication; (3) whether the technique has a known or potential rate of error; and
(4) whether the theory or technique has been met with widespread acceptance.” Emig v.
Electrolux Home Prods. Inc., 2008 WL 4200988, *6 (S.D.N.Y. 2008) (citing Daubert, 509 U.S.
at 593-94). The Rule 702 inquiry is “a flexible one,” Daubert, 509 U.S. at 594, and while “a trial
court may consider one or more of the more specific factors that Daubert mentioned[,] . . . [the]
list of specific factors neither necessarily nor exclusively applies to all experts or in every case,”
Kumho Tire Co., 526 U.S. at 141. “The primary objective is ‘to make certain that an expert,
whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.’” Cerbelli v. City of New York, 2006 WL 2792755, *2 (E.D.N.Y. 2006) (quoting
Kumho Tire Co., 526 U.S. at 152). “As the courts and Advisory Committee have made clear,
‘the rejection of expert testimony is the exception rather than the rule.’” M.B. ex rel. Scott v.
CSX Transp., Inc., 130 F. Supp. 3d 654, 665 (N.D.N.Y. 2015) (quoting Fed. R. Evid. 702,
Advisory Committee’s Note).
Failure to Warn Opinions
Failure to Sound Bell or Horn
Timko proposes to testify that NORAC operating rules and CSX’s internal
regulations required that the train’s bell and horn be sounded prior to train movement. In
deciding defendants’ motion for summary judgment, the Court expressly considered this point
and determined as a matter of law that “neither the NORAC rules nor defendants’ own internal
rules define defendants’ duty, because those rules are more restrictive than New York’s common
law.” (Docket # 90 at 17). The Court further found that, under New York’s common law,
“defendants had a duty to sound a bell or horn, upon movement of a train, to warn trespassers of
the imminent danger.” (Id. at 21). The Court explained that the duty arose because, as the
evidence conclusively established, defendants had constructive knowledge of routine trespassers
in the Lyons yard. (Id.).
It is the role of the Court, and not of an expert witness, to instruct the jury on the
law. In this case, the Court has already determined as a matter of law that defendants had a duty
to sound a bell or horn prior to train movement, and the jury will be instructed accordingly. As a
result, Timko’s proposed testimony on this point simply states a legal conclusion on which the
jury will be instructed, and it is thus inadmissible. See, e.g., United States v. Feliciano, 223 F.3d
102, 121 (2d Cir. 2000) (“[i]n evaluating the admissibility of expert testimony, this Court
requires the exclusion of testimony [that] states a legal conclusion”) (internal quotation omitted);
Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 691 F. Supp. 2d
448, 476 (S.D.N.Y. 2010) (expert testimony regarding parties’ legal obligations “improperly
usurps the role of the trial judge in instructing the jury as to the applicable law and the role of the
jury in applying the law to the facts before it”).
Failure to Post Warning Signs
Timko has also offered testimony regarding defendants’ alleged failure to post
warning signs in the Lyons yard. Specifically, Timko has opined that good and accepted
standards of practice required defendants to post signs in and around the Lyons yard stating, e.g.,
“No Trespassing,” “Private Property,” and “Danger,” “High Speed Trains,” or other signage
necessary to educate the public.
Defendants argue that Timko’s opinions regarding signage are not based on
accepted scientific methodology. (Docket # 65-4 at 13-14). It is well-established, however, that
“expert testimony does not [have to] rest on traditional scientific methods.” United States v.
Litvak, 808 F.3d 160, 180 n.25 (2d Cir. 2015) (internal quotation omitted). “Experts of all kinds
tie observations to conclusions through the use of what Judge Learned Hand called ‘general
truths derived from . . . specialized experience.’” Kumho Tire Co., 526 U.S. at 148-49 (quoting
Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15
Harv. L. Rev. 40, 54 (1901)). The Second Circuit has cautioned that “district courts must be
mindful that the Daubert factors do not all necessarily apply even in every instance in which
reliability of scientific testimony is challenged, and in many cases, the reliability inquiry may
instead focus upon personal knowledge and experience of the expert.” United States v. Litvak,
808 F.3d at 180 n.25 (internal quotation omitted).
Here, it is undisputed that Timko has nearly 50 years’ experience in the railroad
industry. He testified at his deposition that, in his experience, it was standard practice in the
railroad industry to post warning signs. This is a proper expert opinion. See Corneli v.
Adventure Racing Co., LLC, 2015 WL 4716285, *8 (N.D.N.Y. 2015) (proposed expert with long
career in amusement and entertainment safety industry could properly opine on “usage,
placement, and verbiage of warning signs” at go-kart track). The average juror is unlikely to
have any knowledge regarding standard practice in the railroad industry regarding the posting of
warning signs and would be aided by Timko’s testimony on this issue. See Scott v. City of New
York, 591 F. Supp. 2d 554, 563 (S.D.N.Y. 2008) (expert with lengthy career in policing could
testify about police industry practices, as such testimony was likely to aid the jury).
Defendants have argued that Timko’s testimony regarding the failure to post
warning signs should be excluded because it is based on faulty factual assumptions – namely,
that Timko does not actually know what signs were posted in the Lyons yard at the time of
Moody’s accident. “Arguments about the assumptions and data underlying an expert’s
testimony go to the weight, rather than the admissibility, of that testimony.” Arista Records LLC
v. Lime Grp. LLC, 2011 WL 1674796, at *7; see also Amorgianos v. Nat’l R.R. Passenger Corp.,
303 F.3d at 266 (lack of “textual support” for expert’s opinion in published studies or scientific
literature may affect weight and not admissibility). Defendants may cross-examine Timko on the
factual assumptions underlying his opinions about their failure to post warning signs, but they
have not established that the opinions should be excluded.
At oral argument, defendants’ counsel advanced the additional argument that,
based on the Court’s summary judgment decision, Timko’s opinions are not relevant because
they do address the issue whether warning signs would have informed Moody that trains in the
Lyons yard moved at nighttime without warning. Timko’s expert report identifies the following
as one of his expert opinions: “CSX failed to properly post the Lyons, NY area with signs
indicating potential dangers or hazards to the public prior to the June 2006 injury to Ms.
Moody.” (Docket # 65-2 at 10). At his deposition, Timko stated that the warning signs in the
Lyons yard could have included “any kind of signage” and that it was incumbent on CSX to
educate the public about the dangers of moving trains. (Docket # 65-3 at 157-59). Timko
reiterated in his affidavit that good and accepted standards of practice required defendants to post
signs in the Lyons yard “to serve as a warning to pedestrians about dangers in the Yard that they
may not appreciate.” (Docket # 69-5 at ¶ 16). In my estimation, these opinions are relevant to
the claims remaining in this case and will be helpful to the jury in ascertaining whether the
presence of warning signs in the Lyons yard would have contributed to Moody’s appreciation of
the danger that trains move without warning at nighttime.
In his expert report and/or in his deposition testimony, Timko opined that CSX
failed to sponsor Operation Lifesaver events or work with local police to educate the public,
failed to properly respond to reports of pedestrian traffic at the Lyons yard, failed to properly
train its employees regarding the collection and preservation of evidence, failed to perform
proper airbrake testing, failed to erect a fence or barricade, and failed to properly inspect the
railcars (collectively, the “non-failure to warn opinions”). (Docket ## 65-2 at 10-11; 65-3 at
148-49, 180). Timko also opined at his deposition that Moody did not appreciate the dangers
inherent in climbing under a railcar. (Docket # 65-3 at 138-39). At oral argument, Moody’s
counsel conceded that, because the only two remaining claims in this matter relate to defendants’
alleged failure to sound the horn or bell prior to train movement and failure to post warning
signs, Timko’s opinions are relevant only as they relate to those two specific issues.
Accordingly, the Court grants defendants’ motion to preclude the non-failure to warn opinions.
See In re Refco Inc. Sec. Litig., 2012 WL 7007795, *4 (S.D.N.Y. 2012) (“[t]o the extent the
experts here are opining about the merits of dismissed claims, they fail the Daubert ‘fit’
requirement for the simple reason that those merits have already been determined and are no
longer relevant to the proceedings”) (collecting cases), report and recommendation adopted,
2013 WL 452400 (S.D.N.Y. 2013).
Defendants have also met their burden of showing that Timko is unqualified to
opine as to plaintiff’s particular appreciation of the dangers of climbing beneath a railcar. Timko
does not purport to have any training or expertise in the fields of psychology or sociology, nor
does the record suggest that he is qualified to assess Moody’s particular ability to appreciate
danger. “[A]n expert must . . . stay within the reasonable confines of his subject area, and cannot
render expert opinion on an entirely different field or discipline.” M.B. ex rel. Scott v. CSX
Transp., Inc., 130 F. Supp. 3d at 672 (internal quotation omitted) (finding railroad expert
unqualified to opine on minimum time required for individual to clear path of train because he
was not an expert in “human factors analysis”).
In sum, defendants’ motion to exclude is denied with respect to Timko’s proposed
testimony on defendants’ alleged failure to post warning signs and is granted in all other
Moody’s Motion for Sanctions
The train that injured Moody was designated Q627 and operated by engineer
Frederick Albrecht. (Docket # 68-6 at 44). The locomotive attached to Train Q627 was
equipped with an event recorder, also known as a “black box,” which records all movements
from the locomotive, including acceleration, deceleration, speed, air pressure, braking, and use of
the bell and/or horn. (Id. at 9-11). The event recorder operates continuously. (Id. at 12).
Michael Lewandowski (“Lewandowski”), CSX’s road foreman of engines, was
deposed on February 28, 2011, and testified that he had received approximately two months of
on-the-job training regarding retrieval of information from an event recorder. (Id. at 13).
Lewandowski further testified that he attended “a handful” of eight-hour classes on the same
subject. (Id. at 14-15).
In 2006, Lewandowski was responsible for downloading information from event
recorders. (Id. at 16). He described the process as consisting of (1) entering the locomotive;
(2) measuring the wheel to determine speed; (3) ringing the bell and blowing the horn and
matching the time on his cell phone to the time on the locomotive; and, (4) turning on the
computer and entering the data, finding “the program,” plugging in cables, and “click[ing] on the
program,” which would then “automatically download to the computer.” (Id. at 17).
Lewandowski testified that he would use a laptop owned and provided by CSX to download
information from an event recorder and that this laptop was not available for anyone else’s use.
(Id. at 22-23). The downloaded information from a locomotive such as the one attached to Train
Q627 would consist of three files, a .STA file, a .SIS file, and a .DAT file, all of which are
necessary in order to read the data. (Id. at 50-52).
In June 2006, Lewandowski was responsible for accessing the event recorder on
the train that had injured Moody. (Id. at 43-45). Lewandowski had no specific memory of
having downloaded the information from Train Q627, but testified that it was his practice to
open the data files and confirm that the necessary data was present. (Id. at 52). Defendants have
submitted a declaration from Stephen Swanson (“Swanson”), a senior software engineer for
CSX, the exhibit to which shows that Lewandowski downloaded the data from Train Q627 at
2:30 a.m. on June 16, 2006, shortly after the accident occurred. (Docket # 81-2, Ex. A).
After retrieving data from an event recorder, Lewandowski was required by
CSX’s procedures to transmit it to a central data vault (the “Vault”) in Jacksonville, Florida,
using a communications program known as ERAD. (Docket # 68-6 at 29-30). He would select
the individual data files from the downloads folder on his laptop’s hard drive and transmit them
to the Vault via ERAD. (Id.).
As discussed further below, defendants have been unable to produce the .DAT file
from the event recorder on Train Q627. Lewandowski testified that he did not remember if he
had uploaded the .DAT file to the Vault and that it was possible he sent only two files. (Id. at
52-53). CSX’s records show that Lewandowski uploaded three files, but that he uploaded a
.HDR file instead of a .DAT file. (Docket # 81-2, Ex. A). A .HDR file is generated by event
recorders on a different kind of locomotive than the one involved in the instant matter. (Id. at
¶ 11). Defendants surmise that Lewandowski inadvertently selected the .HDR file rather than the
correct .DAT file as the third file in his upload. (Docket # 81 at 5).
At some point between Moody’s accident in June 2006 and 2010, the laptop
Lewandowski used to download the files from Train Q627’s event recorder crashed. (Docket
# 68-6 at 54). Lewandowski estimated that the crash occurred “within a year or two” of
Moody’s accident. (Id. at 54-55). Lewandowski sent the crashed laptop to Jacksonville. (Id. at
57-58). Defendants are unable to provide information regarding what efforts, if any, were made
to recover data from the crashed laptop, nor have they been able to produce the laptop. (See
Docket # 81 at 5).
Moody served discovery demands on June 23, 2009, in which she requested,
among other items, the “[c]omplete event recorder printout(s) for [Train Q627].” (See Docket
## 22 at 1; 68-3 at 15). In their response dated April 9, 2010, defendants stated that they had
“identified a download for the subject locomotive” but “[t]he data . . . is not in readable format”
and that they were “seeking outside expert assistance in attempting to retrieve the data from the
download.” (Docket # 68-3 at 15). On April 14, 2010, Moody served a supplemental notice to
produce “specifically requesting the ‘download’ and information/software necessary to interpret
the data.” (See Docket # 22 at 1). On June 22, 2010, defendants responded to Moody’s
supplemental notice by enclosing a copy of the ‘download’ and reiterating that they had been
unable to “discern the format or obtain any readable information.” (Docket # 68-4 at 1-2).
Defendants’ counsel also sent a letter dated June 22, 2010, in which he stated that Lewandowski
had downloaded the data from the event recorder and:
It appears Mr. Lewandowski downloaded two of three files
necessary to read the information, apparently failing to upload a
“dat” file. Upon discovery of the missing “dat” file, inquiry was
made of Mr. Lewandowski to kindly check his laptops to
determine if the missing file was available. Unfortunately, by the
time this request was made, Mr. Lewandowski’s laptop had
crashed and [been] turned into CSX Communications for recycling
(Docket # 68-5 at 1).
The Parties’ Positions
Moody seeks sanctions on the grounds that defendants have spoliated evidence.
(Docket # 68-1 at 11). Specifically, Moody maintains that defendants spoliated the data from the
event recorder and requests that the Court strike defendants’ answer or, in the alternative,
provide an adverse inference instruction. (Id.).
According to Moody, defendants had a duty to preserve the event recorder data
saved on Lewandowski’s laptop and in the Vault. (Docket # 68-1 at 14). Moody argues that
defendants were aware that the event recorder data was “central” to the parties’ dispute and that
the laptop at issue was “the only tangible piece of evidence that held this critical data,” and thus
they had a duty to preserve the evidence. (Id. at 15). Moody further contends that defendants
failed to take reasonable steps to preserve the data on the laptop and/or in the Vault and their
actions were willful or grossly negligent. (Id. at 16-17). Finally, Moody argues that she has
been prejudiced by the destruction of the data because it would have conclusively resolved the
central issue of whether the locomotive’s horn or bell sounded prior to train movement. (Id. at
19-20). Accordingly, she maintains that severe sanctions are warranted. (Id. at 20).
Defendants dispute that sanctions are warranted, maintaining that they took
reasonable steps to preserve the event recorder data, Moody was not prejudiced by the loss of the
data, and defendants did not act culpably. (See Docket # 81 at 9). Defendants characterize their
actions (sending Lewandowski to retrieve the event recorder data within hours of the accident
and promptly sending it to a central system) as objectively reasonable and urge the Court to find
that only “inadvertent human error” caused the loss of the data. (Id. at 10). Defendants further
contest that they had any obligation to preserve Lewandowski’s laptop, emphasizing that the law
does not require parties to maintain multiple copies of relevant evidence. (Id. at 11).
Defendants argue that Moody has not been prejudiced by the loss of the event
recorder data because (1) failure to sound the bell or horn would not amount to negligence (id. at
13), and (2) Moody may still present her claim to the jury without the event recorder data, and
the jury will be “perfectly capable of determining who is telling the truth” about whether or not
the horn or bell was sounded (id. at 14-15). Defendants contend that there is no way of knowing
whether the event recorder data would have supported Moody’s version of events, and “[i]t is at
least as likely that the event recorder data would have corroborated the engineer’s (Mr.
Albrecht’s) testimony that he did sound the horn.” (Id. at 15) (emphasis in original).
Finally, defendants maintain that, even if the Court were to determine that some
sanction is appropriate, severe sanctions are precluded because they did not intentionally deprive
Moody of the event recorder data. (Id. at 16). Defendants contend that simple human error
amounts “at most to simple negligence” and does not constitute bad faith or intentional
destruction of evidence. (Id. at 17).
In reply, Moody argues that the data at issue was lost not because of isolated
human error, but due to multiple and “monumental” failures on the part of defendants to ensure
that the data remained accessible, from which the Court may infer that defendants intentionally
deprived her of the event recorder data. (Docket # 83 at 5-6, 10-11). Moody further maintains
that she was indeed prejudiced by the loss because the data would have conclusively determined
whether the horn was sounded. (Id. at 6-7). In the alternative, Moody asks the Court to impose
“other curative sanctions.” (Id. at 11-12).3
With the Court’s permission, defendants filed a sur-reply in which they argue that they should not be
penalized for failing to check that Lewandowski had uploaded the correct data to the Vault and reiterate that they did
not act culpably. (Docket # 85-1 at 3-5).
“Spoliation is the destruction or significant alteration of evidence, or the failure to
preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”
West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). “The right to impose
sanctions for spoliation arises from a court’s inherent power to control the judicial process and
litigation, but the power is limited to that necessary to redress conduct ‘which abuses the judicial
process.’” Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685
F. Supp. 2d 456, 465 (S.D.N.Y. 2010) (internal quotation omitted), abrogated on other grounds
by Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135 (2d Cir. 2012), cert. denied, 133
S. Ct. 1724 (2013).
Generally, a party bringing a spoliation motion must demonstrate that: (1) the
party charged with destroying the evidence had an obligation to preserve it; (2) the records were
destroyed with a “culpable state of mind”; and, (3) the destroyed evidence was relevant to the
party’s claim or defense. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107
(2d Cir. 2002) (citing Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107-08 (2d Cir.
2001)); see also Arista Records LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 430 (S.D.N.Y.
2009); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003). This general rule
applied to the destruction of both tangible and electronic evidence until December 1, 2015, at
which time Rule 37 of the Federal Rules of Civil Procedure was amended to provide a different
standard for destruction of electronically stored information. Specifically, Rule 37(e) now
If electronically stored information that should have been
preserved in the anticipation or conduct of litigation is lost because
a party failed to take reasonable steps to preserve it, and it cannot
be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to cure
the prejudice; or
(2) only upon finding that the party acted with the intent to deprive
another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to
(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e). This new rule “rejects cases such as Residential Funding Corp. v.
DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), that authorize the giving of
adverse-inference instructions on a finding of negligence or gross negligence.” McIntosh v.
United States, 2016 WL 1274585, *31 (S.D.N.Y. 2016) (internal quotation omitted).
Rule 37(e) was amended as part of the 2015 amendments to the Federal Rules of
Civil Procedure, and the new version “govern[s] in all proceedings in civil cases commenced
after December 1, 2015, and, insofar as just and practicable, all proceedings pending on that
date.” Id. (internal quotations omitted). “Courts within this Circuit have applied the amended
version of Rule 37(e) on a case-by-case basis.” Distefano v. Law Offices of Barbara H. Katsos,
PC, 2017 WL 1968278, *4 (E.D.N.Y. 2017). With some exceptions, motions that were filed and
briefed prior to December 1, 2015, have been decided under the prior standard, and those briefed
thereafter have been decided under the amended version. See id. (collecting cases).
Here, the Court finds that it is both just and practicable to apply the current
version of Rule 37(e) to Moody’s motion. The motion was filed on April 1, 2016, four months
after the 2015 amendments took effect. Moreover, both parties’ briefs acknowledge and argue
the current version of Rule 37(e). Additionally, “[t]he new rule places no greater substantive
obligation on the party preserving ESI” and “is in some respects more lenient as to the sanctions
that can be imposed for violation of the preservation obligation,” and therefore “there is no
inequity in applying it.” CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 496 (S.D.N.Y.
Moody argues that the current version of Rule 37(e), which deals only with the
loss of electronically stored information, does not apply to defendants’ destruction of
Lewandowski’s “crashed” laptop because it is tangible evidence. (See Docket # 83 at 3-6). I
disagree. Although the laptop itself is tangible evidence, the electronic information stored within
the laptop is the relevant evidence. Had defendants lost or destroyed the contents of the laptop
but preserved the physical hardware, Moody would be in precisely the same position as she is
now. It is the loss of the electronic evidence stored on the laptop that gives rise to this dispute –
one that falls squarely within the scope of Rule 37(e), the terms of which apply whenever
“electronically stored information that should have been preserved in the anticipation or conduct
of litigation is lost because a party failed to take reasonable steps to preserve it.” Fed. R. Civ. P.
Accordingly, this Court will apply the current version of Rule 37(e). Under that
rule, the Court must consider (1) whether electronic information that should have been preserved
has been lost; (2) whether defendants took “reasonable steps” to preserve that information;
(3) whether the information can be restored or replaced through additional discovery;
(4) whether Moody has been prejudiced by the loss of the information; and, (5) whether
defendants acted with the intent to deprive Moody of the information’s use. See generally CAT3,
LLC v. Black Lineage, Inc., 164 F. Supp. 3d at 495-502.
Duty to Preserve
“Identifying the boundaries of the duty to preserve involves two related inquiries:
when does the duty to preserve attach, and what evidence must be preserved?” Zubulake v. UBS
Warburg LLC, 220 F.R.D. at 216 (emphasis in original). A party is obligated to preserve
evidence when it has “notice that the evidence is relevant to litigation or when a party should
have known that the evidence may be relevant to future litigation.” Fujitsu Ltd. v. Fed. Express
Corp., 247 F.3d 423, 436 (2d Cir.), cert. denied, 534 U.S. 891 (2001); Creative Res. Grp. of New
Jersey, Inc. v. Creative Res. Grp., Inc., 212 F.R.D. 94, 105 (E.D.N.Y. 2002). Here, defendants
do not contest that they had an obligation to preserve the event recorder data, nor could they
plausibly do so. No genuine question exists that the event recorder data from the locomotive
involved in the accident that injured the plaintiff likely contains relevant information. Nor is
there any dispute that the data has been lost. Accordingly, the Court finds that the first element
of Rule 37(e) has been met.
Reasonable Steps to Preserve
Moody, as the party seeking sanctions, must show that defendants failed to take
reasonable steps to preserve the event recorder data. Moody maintains that defendants’ failure at
any time between 2006 and 2010 to confirm that the files uploaded to the Vault by Lewandowski
were complete and accessible was unreasonable. Moody further contends that destruction of the
crashed laptop was unreasonable.
As a threshold matter, I find that defendants’ explanation for the loss of the data
strains credulity. According to defendants, although Lewandowski uploaded certain event
recorder data to the Vault within hours of Moody’s accident, no one attempted to access or
review the data at any time during the next four years, despite the fact that defendants had been
sued by the injured party and the data – had it been uploaded correctly – would have established
relevant and material facts, such as: (1) whether the bell and/or horn were sounded prior to train
movement; (2) how fast the train was moving when Moody was struck; and, (3) whether the
brakes had been applied. The proposition that a sophisticated railroad transportation corporation
such as CSX could be involved in a serious accident in which an individual lost a limb and
thereafter fail for four years to review critical data relating to how that accident occurred is
unfathomable. The implausible nature of defendants’ narrative is heightened by their complete
inability to explain what happened to Lewandowski’s laptop after he returned it to Jacksonville.
Of course, a court is not required to credit explanations for the loss of the relevant evidence that
it finds incredible. See, e.g., Babaev v. Grossman, 2008 WL 4185703, *3 (E.D.N.Y. 2008)
(imposing sanctions for spoliation where “the court d[id] not find the defendants’ arguments
credible, nor their evidence persuasive, on the fundamental issue of whether they engaged in
spoliation of the evidence on the . . . computer”).
Even if defendants’ explanation for the loss of the data were credited, their failure
to access the files uploaded to the Vault for the four-year period before 2010 conflicted with their
duties under the Federal Rules of Civil Procedure. The instant lawsuit was commenced in July
2007 and removed to federal court in August of that year. (See Docket # 1). Moody’s complaint
expressly asserts that the train that injured her “began moving without issuing a siren, signal or
any warning whatsoever.” (Docket # 1-3 at ¶ 17). In their answer, filed on August 22, 2007,
defendants denied that allegation “for lack of knowledge or information sufficient to form a
belief as to [its] truth.” (Docket # 2 at ¶ 17). Pursuant to Rule 11 of the Federal Rules of Civil
Procedure, a party or attorney who signs a pleading “certifies that to the best of the person’s
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances[,] . . . the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or lack of information.” Fed. R. Civ. P.
11(b)(4) (emphasis added). Accepting defendants’ recitation of events, they submitted an answer
– which they allowed to stand without supplementation – denying for lack of knowledge that the
involved train moved without sounding the bell and/or horn without checking data, in their sole
control and possession, that they knew would have conclusively shown whether that was
accurate. Although Moody has not sought Rule 11 sanctions and this Court is not determining
that issue, defendants’ apparent failure to conduct the inquiry required by Rule 11 is relevant to
this Court’s assessment of defendants’ conduct.4 Significantly, had defendants reviewed the
event recorder data prior to submission of their answer (or promptly thereafter in order to
supplement it), they would have discovered that the .DAT file was missing no later than August
2007. According to Lewandowski’s testimony, the file likely still existed on his laptop at that
time and could have been recovered. (Docket # 68-6 at 54-55).
Defendants also failed to comply with their obligation under Rule 26 to provide
“without awaiting a discovery request . . . a copy – or a description by category and location – of
all documents, electronically stored information, and tangible things that [they had] in [their]
possession, custody, or control and may use to support [their] claims or defenses.” Fed. R. Civ.
P. 26(a)(1)(A)(ii) (emphasis added). Initial disclosures must be “based on the information then
reasonably available to [the party].” Fed. R. Civ. P. 26(a)(1)(E). Moreover, discovery responses
must be based on a “reasonable inquiry.” Markey v. Lapolla Indus., Inc., 2015 WL 5027522,
At oral argument, their counsel suggested that defendants should not be deemed responsible for their
prior counsel’s failure to perform a reasonable inquiry prior to submission of the answer. It is well-established,
however, that represented parties may be subject to Rule 11 sanctions where they share responsibility for the
violation. See, e.g., Braun ex rel. Advanced Battery Techs., Inc. v. Zhiguo Fu, 2015 WL 4389893, *12 (S.D.N.Y.
2015) (“[u]nder Rule 11(c)(1), sanctions may be imposed not only against attorneys, but also against represented
parties, where the party is responsible for the violation”) (internal quotation omitted). Here, the fact that
Lewandowski took steps to retrieve the event recorder data within hours of the accident evidences that defendants
were aware of the importance of that information.
*15, 19 (E.D.N.Y. 2015) (sanctioning law firm for failing “to conduct a more thorough
investigation of the discovery in [p]laintiffs’ possession prior to serving the [i]nitial
[d]isclosures”), report and recommendation adopted, 2016 WL 324968 (E.D.N.Y. 2016).
Pursuant to this Court’s scheduling order, the Rule 26 mandatory disclosures were required to be
made by no later than July 15, 2008. (Docket # 6). Again, even accepting defendants’
representations about what they did and what they knew about the data, they nonetheless
submitted their initial disclosures without apparently reviewing the event recorder data, despite
the fact that Moody’s complaint undeniably put them on notice that whether or not the bell
and/or horn were sounded prior to the train’s movement was a key factual dispute. Considering
all the circumstances, this Court finds that defendants’ failure to perform this straightforward and
required inquiry was unreasonable, at best. Cf. Tippett v. Burlington N. Santa Fe Corp., 2009
WL 10665811, *2 (D.N.M. 2009) (noting train event recorder was provided with initial
disclosures), aff’d in part, vacated in part sub nom. Henderson v. Nat’l R.R. Passenger Corp.,
412 F. App’x 74 (10th Cir. 2011); BNSF Ry. Co. v. LaFarge Sw., Inc., 2008 WL 9471222, *1
(D.N.M. 2008) (same).
Moreover, [a] party’s failure to maintain electronic data in an accessible format
may constitute sanctionable conduct. See, e.g., Mazzei v. Money Store, 308 F.R.D. 92, 101
(S.D.N.Y. 2015) (failure to maintain invoice system in accessible format warranted sanctions),
aff’d, 829 F.3d 260 (2d Cir. 2016), cert. denied, 137 S. Ct. 1332 (2017); Arrowhead Capital Fin.,
Ltd. v. Seven Arts Entm’t, Inc., 2016 WL 4991623, *20 (S.D.N.Y. 2016) (delay in downloading
discoverable information from server or moving it from server to new cloud-based system was
reckless and unreasonable when party knew it might lose access to server), reconsideration
granted in part on unrelated grounds, 2017 WL 1653568 (S.D.N.Y. 2017). Courts routinely
hold that a party’s discovery obligations include taking “affirmative steps” to “ensure that all
potentially relevant evidence is retained.” Richard Green (Fine Paintings) v. McClendon, 262
F.R.D. 284, 289 (S.D.N.Y. 2009) (internal quotation omitted) (finding spoliation where party
failed to maintain original version of electronic spreadsheet, but instead transferred files from
hard drive to compact discs). Here, defendants themselves admit that they took no steps to
confirm that the event recorder data had been properly uploaded by Lewandowski. Indeed,
according to Swanson’s declaration, any attempt to access the information in the Vault would
have revealed the uploading error. (See Docket # 81-1 at ¶ 12). In other words, defendants
allowed the original data on the event recorder to be overwritten and destroyed without ensuring
that it had been appropriately preserved. Just as it would be unreasonable for a party preserving
a paper file to copy it blindly, put it in a drawer without ever looking at it, and then destroy the
original, so too was it unreasonable for defendants to upload the event recorder data to the Vault
and not even look at the files to confirm that the appropriate data had been uploaded and was
accessible. This failure is especially remarkable in view of the important and irreplaceable
nature of the data at issue.
Referring to the copy of the event recorder data stored in the Vault as a “backup,”
defendants assert they had no obligation to “double-check” a backup. (See, e.g., Docket # 85-1
at 3). To the contrary, Lewandowski’s testimony makes clear that the copy in the Vault was the
primary copy. (See Docket # 68-6 at 48-49). Specifically, he testified that any request for event
recorder data would “go through Jacksonville” and he played no role in the process of
disseminating event recorder data. (Id.). Indeed, elsewhere in their papers defendants state that
they “reasonably believed that [the] primary copy of the data had been properly stored in the
Jacksonville data vault.” (Docket # 81 at 11). Defendants’ argument that the Vault constituted a
“data backup system” and that they had no obligation to “double-check [the] backup” (see
Docket # 85-1 at 3) is specious and does not change the Court’s conclusion that it was
unreasonable for defendants to fail to confirm that the uploading procedure had been properly
The Court further finds that defendants acted unreasonably in destroying or
recycling Lewandowski’s crashed laptop. Lewandowski testified that it had crashed within a
year or two after the accident and that he sent it to Jacksonville. (Docket # 68-6 at 54-55, 57-58).
Defendants have been unable to locate any data that was retrieved from the crashed laptop or to
provide any information regarding whether and, if so, what efforts were undertaken to retrieve
Although it was decided under the prior version of Rule 37(e), the court’s
decision in Learning Care Grp., Inc. v. Armetta, 315 F.R.D. 433, 437 (D. Conn. 2016), is
instructive. There, the plaintiff had a policy of backing up employee emails to a server, rather
than saving them locally on a specific computer. Id. at 436. After litigation had been
commenced, the plaintiff destroyed, in the normal course of business and consistent with its
normal practices, a laptop computer used by its former chief marketing officer (“CMO”), who
was a key player in the activity underlying the lawsuit. Id. Numerous emails sent by the former
CMO were later discovered to have been deleted from the server. Id. The defendants moved for
sanctions on the grounds that the plaintiff had spoliated evidence by destroying the laptop from
which “they would likely have been able to recover many of the deleted e-mails.” Id. at 436-37.
The court agreed that the plaintiff had an obligation to preserve the laptop and that its conduct in
destroying it was negligent. Id. at 437-40.
As in Learning Care, defendants destroyed or recycled Lewandowski’s laptop
despite knowing that it likely contained relevant evidence that they never confirmed had been
properly uploaded to another repository (the Vault). For all the reasons discussed herein, I find
that defendants did not take reasonable steps to preserve the event recorder data.
Reproducibility of Lost Information
The third element the Court must consider is whether the lost information can be
restored or replaced by other means. Nothing in the record before the Court suggests that the
event recorder data may be restored or replaced, and defendants have not argued otherwise.
Accordingly, the Court concludes that this element of Rule 37(e) has been met.
Prejudice to Moody
Under Rule 37(e)(1), sanctions may be imposed where the loss of electronic
information has prejudiced the moving party. Here, defendants dispute that Moody has been
prejudiced, arguing that Moody has other evidence available to her regarding whether the bell
and/or horn were sounded and that the event recorder data might not have supported Moody’s
“In order to impose a sanction under Rule 37(e)(1), the court must have some
evidence regarding the particular nature of the missing ESI in order to evaluate the prejudice it is
being requested to mitigate.” Eshelman v. Puma Biotechnology, Inc., 2017 WL 2483800, *5
(E.D.N.C. 2017). The Advisory Committee notes explain:
The rule does not place a burden of proving or disproving
prejudice on one party or the other. Determining the content of
lost information may be a difficult task in some cases, and placing
the burden of proving prejudice on the party that did not lose the
information may be unfair. In other situations, however, the
content of the lost information may be fairly evident, the
information may appear to be unimportant, or the abundance of
preserved information may appear sufficient to meet the needs of
all parties. Requiring the party seeking curative measures to prove
prejudice may be reasonable in such situations. The rule leaves
judges with discretion to determine how best to assess prejudice in
Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. Prejudice under Rule 37(e)
may be found where a party has been required to “piece together information from other sources
to try to recover relevant documents.” In re: Ethicon, Inc., 2016 WL 5869448, *4 (S.D. W. Va.
Under the circumstances of this case, the Court finds that it would be
unreasonable and unfair to require Moody to demonstrate that the event recorder data would
have been favorable to her. Indeed, the Second Circuit has cautioned district courts against
“holding the prejudiced party to too strict a standard of proof regarding the likely contents of . . .
destroyed evidence.” Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998). At least one
court has held that “[t]o show prejudice resulting from the spoliation [under the current version
of Rule 37(e)], a party must only come forward with plausible, concrete suggestions as to what
[the destroyed] evidence might have been.” TLS Mgmt. & Mktg. Servs. LLC v.
Rodriguez-Toledo, 2017 WL 1155743, *1 (D.P.R. 2017) (internal quotations omitted) (finding
prejudice where party “plausibly suggest[ed]” that a discarded laptop “might have” contained
documents or information relevant to the action).
Here, as defendants’ counsel acknowledged at oral argument, the event recorder
data would have conclusively determined whether the horn or bell on Train Q627 were sounded
prior to movement. That critical and irreplaceable data was within defendants’ complete control
to review and produce, but they failed to take simple, reasonable steps to preserve it. Moody has
identified testimonial evidence (her own and that of her friend Tiffany Johnson) that the bell
and/or horn were not sounded prior to train movement. Under these circumstances, it is
plausible that the data from the event recorder would have supported Moody’s case.
Accordingly, prejudice has been established.
In addition, the loss of the data has required Moody to spend additional resources
to attempt to resolve this critical factual dispute. Moody likely would not have deposed
Lewandowski had the event recorder data been available, and the Court could have determined
as a matter of law whether or not defendants had complied with their duty to sound the bell
and/or horn prior to train movement. The Court therefore concludes that defendants’ loss of this
information has prejudiced Moody. See, e.g, Aktas v. JMC Dev. Co., 877 F. Supp. 2d 1, 18
(N.D.N.Y. 2012) (party’s inability to inspect original evidence resulted in “significant
prejudice”), aff’d, 563 F. App’x 79 (2d Cir. 2014); Henkel Corp. v. Polyglass USA, Inc., 194
F.R.D. 454, 457 (E.D.N.Y. 2000) (defendant’s inability to inspect original evidence that plaintiff
inspected resulted in uneven “evidentiary playing field”; “[b]ecause plaintiff is responsible for
this evidentiary disparity, some form of sanction is appropriate”).
Having determined that some sanction is appropriate in this case, the Court must
decide whether the specific sanctions sought by Moody – striking defendants’ answers and/or
issuing an adverse inference instruction – are warranted. “Rule 37(e)[(2)]5 now reserves the
harshest discovery sanctions, such as adverse inference instructions, dismissals, or default
judgments, only for cases in which the court can ‘fin[d] that the [spoliating] party acted with the
intent to deprive another party of the information’s use in the litigation.’” Jenkins v. Woody,
Rule 37(e)(2) “does not include a requirement that the court find prejudice to the party deprived of the
information.” Fed. R. Civ. P. 37(e)(2) advisory committee’s note to 2015 amendment. As discussed below, the
Court finds that defendants acted with an intent to deprive Moody of the event recorder data, and Rule 37(e)(2) thus
applies. Accordingly, sanctions are warranted even in the absence of a finding of prejudice.
2017 WL 362475, *17 (E.D. Va. 2017) (quoting Fed. R. Civ. P. 37(e)(2)). This intent standard is
“stringent” and “does not parallel other discovery standards.” Id.
Moody argues that the Court may infer an intent to deprive from defendants’
actions in this matter. (See Docket # 68-1 at 22). The Court agrees. In Ala. Aircraft Indus., Inc.
v. Boeing Co., 2017 WL 930597 (N.D. Ala. 2017), the court held that a party may be found to
have acted with an intent to deprive within the meaning of Rule 37(e)(2) where “(1) evidence
once existed that could fairly be supposed to have been material to the proof or defense of a
claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the
evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty
to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly
explained as not involving bad faith by the reason proffered by the spoliator.” Id. at *15
(quoting Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1323
(S.D. Fla. 2010)). Defendants’ conduct in this case supports such an inference. As explained
more fully supra, no question exists that the lost evidence was highly relevant – if not the most
important objective evidence – to the determination of liability. While knowing they had a duty
to preserve the event recorder data, defendants allowed the original data on the event recorder to
be overwritten, and destroyed or recycled Lewandowski’s laptop without ever confirming that
the data had been preserved in another repository. Finally, their failure to make any effort over
the course of four years to confirm that the data was properly preserved in the Vault undercuts
the reasonableness and credibility of their asserted belief that the material was still accessible.
On this record, the Court finds that defendants acted with the intent to deprive Moody of the use
of the event recorder data. See id. at *16 (“this . . . unexplained, blatantly irresponsible behavior
leads the court to conclude that [defendant] acted with the intent to deprive [plaintiff] of the use
of this information”). See also Brown Jordan Int’l, Inc. v. Carmicle, 2016 WL 815827, *1,
33-37 (S.D. Fla. 2016) (finding intent to deprive where spoliating party did not credibly explain
failure to preserve), aff’d, 846 F.3d 1167 (11th Cir. 2017); Internmatch, Inc. v. Nxtbigthing, LLC,
2016 WL 491483, *1, 4 n.6, 11 (N.D. Cal. 2016) (finding defendants had acted with intent to
deprive where “the alleged chronology of events [was] highly improbable, [and] [d]efendants’
story [was] filled with inconsistencies.”
Moreover, even accepting as credible defendants’ explanation for the loss of the
event recorder data, this Court still concludes that defendants’ actions presented sufficient
circumstantial evidence from which to infer that they intended to deprive Moody of the relevant
data. See Ottoson v. SMBC Leasing & Fin., Inc., 2017 WL 2992726, *9 (S.D.N.Y. 2017)
(intentional failure to take steps necessary to preserve relevant evidence “satisfies the requisite
level of intent required by Federal Rule of Civil Procedure 37(e)”). Here, even if
Lewandowski’s initial error in uploading the event recorder data to the Vault is excused,
defendants’ repeated failure over a period of years to confirm that the data had been properly
preserved despite its ongoing and affirmative Rule 11 and Rule 26 obligations, particularly
before discarding Lewandowski’s laptop, is so stunningly derelict as to evince intentionality.
See, e.g., Henkel Corp. v. Polyglass USA, Inc., 194 F.R.D. at 457 (plaintiff’s conduct in
disregard of its discovery obligations, while suggesting but not conclusively establishing bad
faith, demonstrated that it was “highly culpable for the destruction of the relevant evidence”)
(citing Shaffer v. RWP Grp., Inc., 169 F.R.D. 19, 26 (E.D.N.Y. 1996) (finding party “highly
culpable” for its “conscious and reckless disregard” of discovery obligations)). Thus, because I
find that defendants’ acted with intent to deprive, Rule 37(e)(2) permits the imposition of severe
Contrary to Moody’s position, this Court does not find that an order striking
defendants’ answer is justified. “[C]ourts must be wary of issuing case-dispositive sanctions;
such sanctions should be imposed only in extreme circumstances, usually after consideration of
alternative, less drastic sanctions.” Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d
124, 141 (S.D.N.Y. 2009) (internal quotation omitted). Here, although defendants’ actions were
sufficiently egregious to support a finding of intent, they were not so outrageous as to warrant
outright disposition of the case. Rather, in my estimation, an adverse inference instruction is
justified. “The prophylactic and punitive rationales [for an adverse inference instruction] are
based on the . . . commonsensical proposition that the drawing of an adverse inference against
parties who destroy evidence will deter such destruction, and will properly place the risk of an
erroneous judgment on the party that wrongfully created the risk.” Kronisch v. United States,
150 F.3d at 126 (internal quotation omitted). Here, an adverse instruction appropriately
addresses the evidentiary gap caused by defendants’ loss of such material evidence. The precise
form of the instruction will be decided by the Court at the time of trial.
Defendants’ Motion to Bifurcate the Trial
As a result of the accident, Moody suffered extensive injuries, including the
“traumatic amputation of her left leg, as well as severe and extensive damage to and
disfigurement of her right leg, including the loss of the great toe on her right foot.” (Docket
# 98-2 at 3). According to defendants, Moody intends to call at least three damages experts at
trial, in addition to the physicians who treated her injuries. (Docket # 98-1 at ¶¶ 11-13).
Defendants state that they will likely introduce testimony of other medical and economics
experts in order to defend against Moody’s claimed damages and, other than testimony from
Moody herself, there is unlikely to be an overlap between liability witnesses and damages
witnesses. (Id. at ¶¶ 14-15).
The Parties’ Positions
Defendants request that the Court bifurcate the trial into a liability phase and a
damages phase. (Docket # 98-3 at 1). Defendants contend that bifurcation will simplify the
issues and likely expedite the proceedings because the jury is likely to find in their favor on the
issue of liability. (Id. at 2-4). Defendants further argue that there is a risk of juror confusion
absent bifurcation. (Id. at 4-6). Finally, defendants advance the novel argument that bifurcation
is mandated by the Due Process Clause. (Id. at 6-8).
Moody contends that the risk of undue prejudice is low and speculation about
juror sympathy is insufficient to warrant bifurcation. (Docket # 103-1 at 5-6). Moody further
contends that “any potential for prejudice may be avoided through appropriate jury instructions.”
(Id. at 8). She points out that her physical injuries are obvious, and bifurcation will not prevent
the jury from feeling sympathy for her. (Id.). If anything, bifurcation could prejudice her
because the jury may reasonably infer, and be influenced by the assumption, that their term of
jury service will be shortened by a liability verdict in favor of defendants. (Id. at 11).
Moody further opposes defendants’ motion on the basis that the issues of liability
and damages are intertwined. (Id. at 12-13). According to Moody, because her theory of the
case presupposes that she would have had time to escape from beneath the train had defendants
sounded the horn or bell prior to movement, “the biomechanics of her injuries, and the nature in
which they were sustained, are critical to liability.” (Id. at 13).
“Decisions to bifurcate trials . . . are authorized by Federal Rule of Civil
Procedure 42(b) and are typically well within the discretion of district courts.” In re Sept. 11
Litig., 802 F.3d 314, 339 (2d Cir. 2015). Under Rule 42(b), bifurcation may be ordered “[f]or
convenience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ. P. 42(b); see also
Vichare v. AMBAC Inc., 106 F.3d 457, 466 (2d Cir. 1996) (“[t]he interests served by bifurcated
trials are convenience, negation of prejudice, and judicial efficiency”). Bifurcation is “the
exception, not the rule, and the movant must justify bifurcation on the basis of the substantial
benefits that it can be expected to produce.” Svege v. Mercedes-Benz Credit Corp., 329
F. Supp. 2d 283, 284 (D. Conn. 2004); see also Kos Pharm., Inc. v. Barr Labs., Inc., 218 F.R.D.
387, 391 (S.D.N.Y. 2003) (“[t]he inconveniences, inefficiencies and harms inherent in these
probable consequences [of bifurcation] – to the parties and third parties, to the courts, and to the
prompt administration of justice – weigh against separation of trials and suggest that, for those
probable adverse effects to be overcome, the circumstances justifying bifurcation should be
particularly compelling and prevail only in exceptional cases”). In considering whether to
bifurcate, “the [c]ourt should examine, among other factors, whether bifurcation is needed to
avoid or minimize prejudice, whether it will produce economies in the trial of the matter, and
whether bifurcation will lessen or eliminate the likelihood of juror confusion.” Svege v.
Mercedes-Benz Credit Corp., 329 F. Supp. 2d at 284. For the reasons set forth below, the Court
finds that bifurcation is not appropriate.
Minimization of Prejudice
Defendants argue that they will be prejudiced if the trial is not bifurcated because
evidence of Moody’s damages will “dilute the proof on liability” and will also “create the risk
that a jury will return a liability verdict that is tainted by the damages evidence and the sympathy
Ms. Moody’s injuries are likely to invoke.” (Docket # 98-3 at 5-6). These concerns do not
warrant bifurcation. While Moody’s injuries may evoke some sympathy in the jurors, “the same
observation could be made in any case involving traumatic injuries or death. Yet, the issues of
liability and damages are routinely tried [together], even in cases of death or severe injury.”
Svege, 329 F. Supp. 2d at 284; see also Chase v. Near, 2007 WL 2903823, *2 (W.D.N.Y. 2007)
(denying bifurcation motion where “there are no particular factors specific to this case that
distinguish the potential for prejudice here from the potential prejudice which is normally and
customarily dealt with through an appropriate charge and curative instructions where necessary”)
(internal quotation omitted). Moody’s injuries, while serious, do not raise an unusual risk of
juror sympathy. In any event, regardless of whether the Court bifurcates the issues of liability
and damages, the jurors will inevitably learn in the liability phase that Moody was seriously
injured. “Therefore, it is not clear to this [c]ourt that bifurcation will eliminate or even
substantially reduce the potential prejudice that [d]efendants fear.” Svege, 329 F. Supp. 2d at
285 (finding bifurcation inappropriate where jurors would inevitably learn during liability phase
that father had died and two children had been injured in accident). Moreover, “[a]ny danger of
prejudice c[an] be minimized through appropriate jury instructions.” Ake v. Gen. Motors Corp.,
942 F. Supp. 869, 877 (W.D.N.Y. 1996) (collecting cases); see also Coyle v. Crown Enters., Inc.,
2009 WL 2399904, *1 (W.D.N.Y. 2009) (“concern that the presentation of substantial evidence
regarding [p]laintiffs’ injuries could somehow prejudice and confuse the jury can be obviated
through a curative jury instruction”).
Promotion of Judicial Economy
Defendants also argue that “there is a substantial likelihood that bifurcation here
will avoid the need for damages testimony altogether” and that “[t]he probability of a defense
verdict on liability is especially high in this case.” (Docket # 98-3 at 3). “Defendants’ argument
that they are likely to succeed at the liability stage, thereby eliminating the need for a second
trial, is not persuasive. This argument could be made in every case.” Mensler v. Wal-Mart
Transp., LLC, 2015 WL 7573236, *4 (S.D.N.Y. 2015); see also Svege, 329 F. Supp. 2d at 285
(“[t]he [c]ourt certainly appreciates [d]efendants’ confidence on the eve of trial[;] [h]owever,
without expressing any view on the ultimate outcome of this trial, it suffices to say that
[d]efendants’ projected savings are by no means guaranteed”) (internal quotation omitted).
Although the Court noted that the summary judgment determination in this case was close, “[t]he
[c]ourt cannot predict who will be successful at the liability stage, and therefore this argument
does not justify bifurcation.” Mensler v. Wal-Mart Transp., LLC, 2015 WL 7573236, at *4.
Considering that this case has been pending for nearly a decade, the potential, but
far-from-certain, benefit to judicial economy created by a bifurcated trial does not justify the
delay, however modest it may be, in a final resolution of the case. In addition, a decision to
bifurcate may create unnecessary disputes about the admissibility of particular evidence during
the liability phase – the argument and resolution of which may prolong the jury’s ultimate
Prevention of Juror Confusion
Defendants contend that there is no genuine risk of evidentiary overlap between
the issues of liability and damages. I disagree. As Moody correctly points out, one of the key
disputes as to liability is whether defendants’ alleged failure to sound the locomotive’s bell
and/or horn proximately caused Moody’s injuries. Moody therefore intends to offer evidence
that she would have been able to escape from underneath the train without injury if the bell
and/or horn had sounded. This proof will likely encompass evidence concerning how Moody’s
injuries occurred, including which parts of the train impacted which parts of her body. In
addition, Moody and Tiffany Johnson will both testify on the issues of liability and damages.
Under these circumstances, bifurcation is not warranted. See, e.g., Ake v. Gen. Motors Corp.,
942 F. Supp. at 877 (bifurcation not warranted where “[s]ome evidence, such as that relating to
the fire, would be relevant to both liability (to show the cause of death) and damages for
conscious pain and suffering”); Mensler, 2015 WL 7573236, at *4 (“[t]he evidence in this matter
regarding liability and damages, while separate and potentially severable, overlaps[;] [f]or
example, [two witnesses] will testify to both liability and damages”); Chase v. Near, 2007 WL
2903823, at *2 (bifurcation is inappropriate where “there will necessarily be some overlap of
witnesses and their testimony”).
Moreover, “this case does not present complex legal or factual questions”
(Mensler, 2015 WL 7573236, at *4), and no reason exists to doubt a jury’s inability to separate
the issues of liability and damages. See also Svege, 329 F. Supp. 2d at 283 (“this case is not so
complicated and the liability issues are not so numerous or complex that the jury is likely to be
distracted from their task on liability by the presence of testimony and exhibits relating to
damages[;] . . . [g]ood lawyering and careful instructions should keep the jury focused and on
task even if liability and damages are tried together”).
Due Process Considerations
Relying solely on the Supreme Court’s decision in Connecticut v. Doehr, 501
U.S. 1 (1991), defendants advance the novel argument that the Due Process Clause compels
bifurcation in this case. In Doehr, the Supreme Court held that a Connecticut statute
“authoriz[ing] prejudgment attachment of real estate without prior notice or hearing, without a
showing of extraordinary circumstances, and without a requirement that the person seeking the
attachment post a bond” violated the Due Process Clause. Id. at 4. Defendants have not cited a
single case applying Doehr in the context of a request for bifurcation of a personal injury case.
This Court discerns no constitutional impediment under the Due Process Clause to trying
together the issues of liability and damages.
In Doehr, the Supreme Court articulated a three-factor test for evaluating the
procedures that a state must provide before depriving an individual of his property: “first,
consideration of the private interest that will be affected by the . . . measure; second, an
examination of the risk of erroneous deprivation through the procedures under attack and the
probable value of additional or alternative safeguards; and third, . . . principal attention to the
interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any
ancillary interest the government may have in providing the procedure or forgoing the added
burden of providing greater protections.” Id. at 11. In other words, defendants’ argument rests
on the premise that a non-bifurcated trial of this relatively straightforward personal injury case
presents such a substantial risk of an erroneous outcome that it would be constitutionally
foreclosed. The Due Process Clause does not compel such a result, particularly considering that
courts across the country conduct non-bifurcated personal injury trials every day, and no
evidence has been presented to conclude that the jury determinations of those matters are
infected by impermissible considerations of sympathy.
In sum, I conclude that defendants have not shown that either the Due Process
Clause or Fed. R. Civ. P. Rule 42(b) requires bifurcation of the trial in this matter.
For the reasons discussed above, defendants’ motion to exclude Timko’s
testimony (Docket # 65) is GRANTED in PART and DENIED in PART. Moody’s motion
for sanctions (Docket # 68) is GRANTED. Defendants’ motion to bifurcate the trial (Docket
# 98) is DENIED.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
September 21, 2017
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