Feezle et al v. Norfolk Southern Railway Co. et al
Filing
742
Order For the reasons set forth herein, the Court grants Third-Party Plaintiffs Norfolk Southern Corporation and Norfolk Southern Railway Company's Motion to Exclude the Expert Report and Testimony of Dr. Abid Kemal. (ECF No. 625 ). Judge Benita Y. Pearson on 1/27/2025. Related document(s) 687 , 702 . (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE: EAST PALESTINE TRAIN
DERAILMENT
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CASE NO. 4:23CV0242
JUDGE BENITA Y. PEARSON
ORDER
[Resolving ECF No. 625]
Pending is Third-Party Plaintiffs Norfolk Southern Corporation and Norfolk Southern
Railway Company’s (collectively “Norfolk Southern”) Motion to Exclude the Expert Report and
Testimony of Dr. Abid Kemal. (ECF No. 625). Third-Party Defendants GATX Corporation and
General American Marks Company (collectively “GATX”) filed an Opposition. (ECF No. 687).
Norfolk Southern replied. (ECF No. 702). The Court has been advised, having reviewed the
record, the parties’ briefs, and the applicable law. For the reasons below, the Court grants
Norfolk Southern’s Motion to Exclude the Expert Report and Testimony of Dr. Abid Kemal.
I. Background
A.
These facts are largely excerpted from the Notice of Stipulation Regarding Uncontested
Facts (ECF No. 586) between Norfolk Southern and GATX.
On February 3, 2023, “Norfolk Southern Train 32N derailed at approximately 8:54 pm on
February 3, 2023, in East Palestine, Ohio. At the time of the derailment, Train 32N was traveling
east on Main Track 1 along Norfolk Southern’s Fort Wayne Line and consisted of two lead
locomotives, one distributed power unit, and 149 rail cars.” See ECF No. 586 at PageID #:
17627, ¶1. “38 railcars derailed, including 11 cars carrying hazardous materials. [T]ank car
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UTLX 205907 containing butyl acrylates, a flammable liquid, was breached in the derailment
and, as a result, released its contents which ignited and formed a pool fire.” ECF No. 586 at
PageID #: 17632, ¶¶ 56-57. “The pool fire resulting from Train 32N was near or surrounding
five DOT-105J300W (DOT 105) tank cars carrying [VCM, a flammable gas], including GATX
95098[,] which was designed and constructed to transport [vinyl chloride monomer].” ECF No.
586 at PageID #: 17629, 17632 ¶¶ 17, 19, 59. Before the derailment, on February 1, 2023, “four
carmen from the [Terminal Railroad Association of St. Louis] TRRA performed an air brake test
on Train 32N at 8:30 PM.” ECF No. 586 at PageID #: 17630 ¶34. “[A]round February 4, 2023,
a Unified Command was formed[] that included []local first responders and various federal and
state agencies.” ECF No. 586 at PageID #: 17633 ¶¶ 60-61. Two days later, “Unified
Command, with the recommendation of Norfolk Southern and without dissent” executed a “vent
and burn” procedure that “involves detonating explosives at certain locations on each tank to
release and burn off a railcar’s hazardous contents. ECF No. 586 at PageID #: 17632-33; see
also ECF No. 621 at PageID #: 32093. “GATX was not involved in the decision to perform the
vent and burn.” ECF No. 586 at PageID #: 17633 ¶64.
B.
To mitigate liability from the derailment, GATX proffers Dr. Kemal, an expert
concluding that Norfolk Southern and its contractors prematurely performed a vent and burn.
See Opp’n. Expert Rep. of Abid Kemal, Ph.D., CFI, CVFI. (ECF No. 625-3). Norfolk Southern
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moves to exclude Dr. Kemal’s opinions, asserting that he lacks the qualifications to offer his
opinions, and that such opinions are unreliable. 1 See Mem. In Supp. (ECF No. 625-1).
II. Legal Standard
Rule 702 of the Federal Rules of Evidence provides the standards for admitting expert
testimony:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the proponent demonstrates to the court that
it is more likely than not that:
(a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine
a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert's opinion reflects a reliable application of the
principles and methods to the facts of the case.
Id.
Rule 702 “assign[s] to the trial judge the task of ensuring that an expert’s testimony both
rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrill Dow
Pharm., Inc., 509 U.S. 579, 597 (1993). It also governs the admissibility of expert testimony and
codifies the Supreme Court’s holdings in Daubert and Kumho Tire Co. v. Carmichael, 526 U.S.
137 (1999). Expert testimony is admissible only if (1) the testimony is based on sufficient facts
or data, (2) the testimony comes from reliable principles and methods, and (3) the expert has
1
As discussed in a prior Order, the Court will rule on the exclusion of certain
opinion evidence. See 01/22/25 Order (ECF No. 738) at PageID #: 51971 n.2 (“For
efficiency here and in certain of the other twenty-plus Daubert motions filed, the Court will
rule on the exclusion of certain opinion evidence. If an opinion is excluded, no testimony
or report on those topics may be admitted.”)
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reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. An
expert's opinion cannot be based on mere speculation. McLean v. 988011 Ontario, Ltd., 224
F.3d 797, 801 (6th Cir. 2000). The proponent of the expert testimony has the burden of
establishing by a preponderance of the evidence that the proposed testimony satisfies those
standards. See Fed. R. Evid. 702 advisory committee’s note (2000); Daubert, 509 U.S. at 592
n.10. Expert testimony is not admissible “is the exception rather than the rule.” In re Scrap
Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008) (quoting Fed. R. Evid. 702 advisory
committee’s note (2000)). When evaluating a scientific or experiential expert, a court “must
examine the expert witness's testimony for reliability and relevance.” United States v. Martinez,
588 F.3d 301, 323 (6th Cir. 2009).
Furthermore, a Daubert analysis includes consideration of Fed. R. Evid. 403. Daubert,
509 U.S. at 595. Therefore, courts in the Sixth Circuit employ a four-prong test to determine the
admissibility of expert opinions: “(1) that the witness, a qualified expert, (2) was testifying to a
proper subject, (3) which conformed to a generally accepted explanatory theory, and (4) the
probative value of the testimony outweighed its prejudicial effect.” United States v. Smithers,
212 F.3d 306, 312 (6th Cir. 2000) (citing United States v. Green, 548 F.2d 1261 (6th Cir.1977)).
III. Analysis
Dr. Kemal describes himself as a Principal in Exponent’s Thermal Sciences practice,
specializing in analyzing thermal failures involving infrastructure, consumer products and
industrial equipment/processes. See Appendix A (ECF No. 625-3) at PageID #: 35346-50. He
provides design support for products and processes aimed at improving thermal performance for
safety and efficiency and has led large-loss complex failure and product recall investigations to
determine the root causes of failures. ECF No. 625-3 at PageID #: 35347.
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Dr. Kemal offers 15 opinions, including opinions on polymerization, the pressure buildup of the railcars, emergency response options, and practices for responding VCM incidents.
ECF No. 625-3 at PageID #: 35249-51. Principally, Dr. Kemal concludes that the decision to
vent and burn the tank cars was not based on credible evidence. ECF No. 625-3 at PageID #:
35249-51. Norfolk Southern questions whether Dr. Kemal has the credentials to opine on the
wide range of topics he addresses, and whether he can reliably opine on alternatives to the vent
and burn without having analyzed OxyVinyls’s Safety Data Sheet (“SDS”) or statements made
by OxyVinyls’ representatives at the time of the derailment.
1. Dr. Kemal’s Qualifications
Norfolk Southern urges that Dr. Kemal, a mechanical engineer, lacks the qualifications to
opine on the recommendation to vent and burn because he lacks experience with derailments
involving VCM. ECF No.625-1 at PageID #: 35226-27. According to Norfolk Southern, Dr.
Kemal’s opinions on “the adequacy of the emergency response to a derailment, VCM’s chemical
properties and reactivity, VCM tank car loading, and vent and burn alternatives conducted on
tank cars” extend beyond his area of expertise. See Reply in Supp. Of Norfolk S. Co. and
Norfolk S. Ry. Co.’s Mot. To Exclude the Expert Report and Test. of Dr. Abid Kemal (ECF No.
702) at PageID #: 51308. Ultimately, in the eyes of Norfolk Southern, Dr. Kemal’s opinions on
railroad emergency response alternatives (ECF No. 625-1 at PageID #: 35227-28) and the
recommendation to perform a vent and burn (ECF No. 625-1 at PageID #: 35228-30) should be
excluded.
GATX responds Dr. Kemal does not need the degree of knowledge that Norfolk Southern
suggests, because his knowledge in thermodynamics, gas dynamics, combustion, fire and
explosion analysis, material failures, metallurgical procedures, and structural failures will assist
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the trier of fact. See ECF No. 687 at PageID #: 50079-81. GATX argues that Dr. Kemal’s
knowledge of those topics qualifies him to offer his 15 opinions. For example, it suggests that he
may “opine on whether Norfolk Southern’s contractors reasonably feared that the tank cars
might fail because of polymerization[,]”; whether “remedial cooling-related measures would
have been effective alternatives”, “whether Norfolk Southern could have safely transferred the
VCM out of the tank cars[,]” and “it allows him to reliably opine on what analysis and
information-gathering Norfolk Southern and its contractors could have considered prior to the
vent-and-burn.” ECF No. 687 at PageID #: 50082.
Neither Rule 702 nor Daubert require that Dr. Kemal have the degree of experience that
Norfolk Southern suggests for qualification. Instead, Rule 702 requires that the court “must
determine whether the expert’s training and qualifications relate to the subject matter of his
proposed testimony.” Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303 (6th Cir. 1997). “[Courts]
take a liberal view of what ‘knowledge, skill, experience, training, or education’ is sufficient[.]”
Bradley v. Ameristep, Inc., 800 F.3d 205, 209 (6th Cir. 2015) In making that determination, the
question is whether a particular expert can help resolve the issue in each case. Bridger v. Union
Ry. Co., 355 F.2d 382, 388 (6th Cir. 1966) (an expert’s opinion “requires an ad hoc
determination, predicated upon the probable value of the witness’s testimony in relation to the
intricacies of the particular lawsuit.”). “[T]he expert need not have complete knowledge about
the field in question and need not be certain. He need only be able to aid the jury in resolving a
relevant issue.” Mannino v. Int'l Mfg. Co., 650 F.2d 846, 850 (6th Cir.1981).
Dr. Kemal has specialized knowledge in mechanical engineering, thermodynamics, gas
dynamics, and combustion. ECF No. 625-3 at PageID #: 35347. He also holds certifications in
Hazardous Waste Operation and Emergency Response Certification (ECF No. 625-3 at PageID
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#: 35348); and emergency response experience involving chemicals that also run the risk of a
large scale explosions (Dep. Tr. of Abid Kemal (ECF No. 625-5) at PageID #: 52052). His
experience and knowledge of emergency responses, including temperature trends necessary for
polymerization, allow him to opine on the adequacy of railroad emergency responses and vent
and burn alternatives—despite his lack of specialized expertise in railroad emergencies involving
VCM. See Palatka v. Savage Arms, Inc., 535 F. App'x 448, 455 (6th Cir. 2013) 2 (mechanical
engineering professor qualified to opine on a variety of mechanical topics, such as a firearm,
despite not being a firearm expert). Overall, Dr. Kemal’s credentials cover a variety of relevant
topics related to the vent and burn.
The Court finds that Dr. Kemal possesses the qualifications needed to opine on the
adequacy of the emergency response to a derailment, VCM’s chemical properties and reactivity,
VCM tank car loading, and vent and burn alternatives conducted on tank cars, despite his lack of
expertise in related specialized areas. As explained below, however, Dr. Kemal’s qualifications,
alone, are not sufficient to admit his opinions.
2. The Reliability of Dr. Kemal’s Opinions
Norfolk Southern argues that Dr. Kemal’s opinions are unreliable because he does not
limit his opinions to information available at the time of the vent and burn recommendation; and
2
The exclusion of the mechanical expert’s material opinion, in Palatka is
distinguishable from the instant case. In Palatka, the expert conceded that he was not
qualified to offer his material opinion because he was not a material scientist; the materials
used in the firearm went beyond his expertise; and he did not offer any testimony about the
properties used in the firearm’s barrel. Palatka, 535 F. App’x at 453 n.3. Here, Dr.
Kemal’s credentials support certain opinions in his report. See e.g., ECF No. 625-3 at
PageID #: 35312 (discussing alternative cooling measures); see also ECF No. 625-3 at
PageID #: 35283 (providing the feasibility of hot tapping).
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he disregards OxyVinyls’s SDS and the statements made by representatives of OxyVinyls’s to
Norfolk Southern and its contractors about the risk of polymerization of the VCM. ECF No.
625-1 at PageID #: 35230-36. Norfolk Southern also argues that Dr. Kemal’s opinion that
alternatives to the vent and burn decision were not adequately considered is speculative (ECF
No. 625-1 at PageID #: 35237) and suffers from hindsight bias (ECF No. 702 at PageID #:
51315).
GATX counters that Norfolk Southern’s arguments challenge the credibility of Dr.
Kemal’s testimony, not its admissibility. ECF No. 687 at PageID #: 50085. GATX suggests that
Dr. Kemal’s failure to consider the SDS and OxyVinyl’s representatives’ statements do not
render Dr. Kemal’s opinions unreliable, because an expert does need to consider every possible
factor to render a reliable opinion, and Dr. Kemal relied on sufficient facts to support his
conclusions. See ECF No. 687 at PageID #: 50086-87 (explaining that Dr. Kemal relied on
transcripts of first responders, tank-car temperature data, photos and videos of the scene, and he
attended an inspection of the pressure relief device). GATX also responds that the failure to
provide an alternative method to the vent-and-burn supports the factual foundation of Dr.
Kemal’s opinions, rather than its reliability. ECF No. 687 at PageID #: 50089.
Rule 702 demands that experts consider critical information to be considered reliable.
See also ECF No. 702 at PageID #: 51314 (“although he may have considered other evidence in
the record, . . . this is insufficient to render his opinion reliable in light of the essential evidence
that he overlooked.”) “The task for the district court in deciding whether an expert's opinion is
reliable is not to determine whether it is correct, but rather to determine whether it rests upon a
reliable foundation, as opposed to, say, unsupported speculation.” In re Scrap Metal Antitrust
Litig., 527 F.3d 517, 529–30 (6th Cir. 2008). In United States v. Lang, 717 Fed.Appx. 523 (6th
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Cir. 2017), the Sixth Circuit held that an expert opinion is reliable when it rests on a “sufficient”
factual basis and is not “plainly contradict[ed]” by the record. Id. at 536 (emphasis in original).
The importance of the SDS and the statements made by OxyViny’s representatives
regarding the risk of polymerization to the decision to vent and burn is critical. Federal law
requires that safety data sheets contain “information that can be used in the mitigation of an
incident involving hazardous materials.” 3 See 49 C.F.R. § 172.602(a). The SDS at issue advises
and punctuates that VCM, “MAY MASS EXPLODE IN FIRE. EXTREMELY FLAMMABLE
GAS. CONTAINS GAS UNDER PRESSURE, MAY EXPLODE IF HEATED.
POLYMERIZATION CAN OCCUR.” See VCM SDS (ECF No. 585-1) at PageID #: 17609.
Several witnesses 4 have testified to relying on OxyVinyls’s SDS at the time of the derailment.
Even Dr. Kemal concedes that safety data sheets “provide[] information about the composition
of the material and some information also about the incident -- what to do if -- if the chemical is
involved in a -- in an incident with a release of the chemical.” 5 ECF No. 625-5 at PageID #:
52091. Nonetheless, Dr. Kemal fails to account 6 for the SDS and the statements made by
3
Dr. Kemal acknowledges that safety data sheets are required by federal law. ECF
No. 625-5 at PageID #: 52093 (“Q. To your knowledge, are safety data sheets required by
any federal regulations? A. Yes, I think so.”).
4
See Ex. 6 (Deutsch Dep. Excerpt) ECF No. 625-8 at PageID #: 35735 (“I had
Oxy's SDS with several places where it mentioned polymerization.”); Ex. 7 (Wood Dep.
Excerpt) ECF No. 625-9 at PageID #: 35741 (“Q. And did you review that SDS? A. Yes.”);
Ex. 8 (Day Dep. Excerpt) ECF No. 625-10 at PageID #: 35747 (“Q. Fair to say that [the
SDS] was a reliance document for the HAZMAT response in East Palestine derailment?
A. Yes, sir.”).
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Dr. Kemal also asserts that a safety data sheet is “one of the tools to familiarize
ourselves a little bit about the chemical itself, but there’s a lot of other information that one
has to review to really understand the chemical and -- and its properties.” ECF No. 625-5
at PageID #: 52092.
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Dr. Kemal testifies that he did review the safety data sheets, but he did not rely on
the safety data sheets for any of his opinions; instead, he sought other information. See
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OxyVinyl’s representatives about the risk of polymerization, despite it being known that these
were considered in making the decision to vent and burn. Dr. Kemal’s consideration of
transcripts of first responders, tank-car temperature data, photos and videos of the scene, and
other evidence to support his opinions does not cure these deficiencies. His failure to account for
critical contrary evidence renders his methodology unsound and his resultant opinions unreliable.
Daubert, 509 U.S. at 590 (“[p]roposed testimony must be supported by appropriate validation -i.e., ‘good grounds,’ based on what is known.”) Such cherry-picking is disqualifying. In re
Onglyza (Saxagliptin) & Kombiglyze (Saxagliptin & Metformin) Prods. Liab. Litig., 93 F.4th
339, 347 (6th Cir. 2024) (“cherry-picking[ing] ‘undermines principles of the scientific method
and is a quintessential example of applying methodologies (valid or otherwise) in an unreliable
fashion.’”) (citation omitted); see also Lang, 717 Fed.Appx at 536 (“cherry-picking data is just
as bad as omitting it or making it up altogether.”) (citation omitted).
CONCLUSION
For the reasons above, the Court finds that Dr. Kemal’s methodology renders his
opinions unreliable. Additionally, his methodology renders his opinions irrelevant to the
circumstances as they occurred on February 3, 2023. Most importantly, rather than help the jury,
Dr. Kemal’s testimony is more likely to confuse the jury.
ECF No. 625-5 at PageID #: 52092 (“Q. Did you review any safety data sheets in this
matter? A. I did review the safety data sheet in this matter, but I do not have any opinion
on the safety data sheet.”); see also ECF No. 625-5 at PageID #: 52094-95 (“No, I did not
use the safety data sheet in forming my opinions. Q. Why not? A. . . . “safety data sheets
are a quick first bit -- of information . . . I typically go and get more reliable sources for the
kind of material properties that I’m looking for. So I do -- typically will not just rely on a
safety data sheet. You’d need more information, so -- and I found better information, and
that’s what I used.”) (emphasis added).
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Accordingly, the Court grants Third-Party Plaintiffs Norfolk Southern Corporation and
Norfolk Southern Railway Company’s Motion to Exclude the Expert Report and Testimony of
Dr. Abid Kemal. (ECF No. 625).
IT IS SO ORDERED.
January 27, 2025
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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