Feezle et al v. Norfolk Southern Railway Co. et al
Filing
746
Order For the reasons set forth herein, Norfolk Southern's Motion to Exclude (ECF No. 623 ) is granted in part and denied in part. Because the Court finds that Mr. Harnett's opinions on risk assessment, SDS, and emergency respo nse are reliable and based on reliable methodology, the motion to exclude them is denied. Because Mr. Harnett is not qualified to opine on confirmation bias, the opinions he rendered on that topic are excluded. Accordingly, Section VI(B) and conclusion Section VII(C)(2) of his report are excluded. Judge Benita Y. Pearson on 1/27/2025. Related document(s) 669 , 701 . (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
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IN RE: EAST PALESTINE TRAIN
DERAILMENT
CASE NO. 4:23-CV-00242
JUDGE BENITA Y. PEARSON
ORDER
[Resolving ECF No. 623]
Pending is Third-Party Plaintiffs Norfolk Southern Corporation and Norfolk Southern
Railway Company’s (collectively “Norfolk Southern”) Motion to Exclude the Opinion of Mr.
Peter Harnett. ECF No. 623. Third-Party Defendant OxyVinyls LP (“OxyVinyls”) responded in
opposition. ECF No. 669. Norfolk Southern replied. ECF No. 701. The Court has been
advised, having reviewed the record, the parties’ briefs, the applicable law. For reasons set forth
below, the Court denies in part and grants in part Norfolk Southern’s Motion to Exclude (ECF
No. 623).
I.
Background
“Norfolk Southern Train 32N derailed at 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 Notice of Stipulation Regarding Uncontested Facts, ECF No.
585 at PageID #: 17601, ¶ 1. “In total, 38 cars derailed.” ECF No. 585 at PageID #: 17601, ¶ 2.
Five of these cars contained Vinyl Chloride Monomer (“VCM”), which is considered hazardous
and flammable. See ECF No. 585-1 at #17609. OxyVinyls was the shipper of all five cars
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containing VCM and owned three of them. ECF No. 119 at PageID #: 1412, ¶ 6; see also ECF
No. 740 at PageID #: 52005, ¶ 5.
Norfolk Southern settled with Plaintiffs represented in the Consolidated Class Action
Complaint. See Order Granting Final Approval of Settlement, ECF No. 557. Norfolk Southern
also lodged a Third-Party Complaint seeking derivative damages under theories of negligence
and joint and several liability against certain railcar owners: OxyVinyls LP, GATX Corporation,
General American Marks Company, and Trinity Industries Leasing Company. 1 See Third-Party
Compl, ECF No. 119.
Norfolk Southern alleges that OxyVinyls was negligent in connection with its shipment
of the five tank cars containing VCM by, in part, failing to provide accurate information on the
hazard VCM could present. ECF No. 119 at PageID #: 1440–43. Norfolk Southern also alleges
that OxyVinyls’ representatives made conflicting statements on the ability of vinyl chloride to
polymerize, offered inconsistent warnings regarding polymerization, and stated that
polymerization was not possible under the derailment conditions despite the vinyl chloride
having been exposed to extreme conditions. ECF No. 119 at PageID #: 1442, ¶ 168.
OxyVinyls’ Safety Data Sheet (“SDS”) warned that air, sunlight, excessive heat, oxidizers,
catalytic metals such as copper, aluminum, and their alloys, and certain catalytic impurities could
result in explosive or violent polymerization. ECF No. 119 at PageID 1441–24 ¶¶ 69. Norfolk
Southern alleges that the tank cars in which OxyVinyls shipped VCM had aluminum
components in the pressure release devices and in other components on each of the cars shipping
1
The Court dropped Trinity Industries Leasing Company as a Third-party
Defendant with prejudice pursuant to Fed. R. Civ. P. 21 for the reasons stated in the
Unopposed Motion of Third-party Plaintiffs Norfolk Southern Corporation and Norfolk
Southern Railway Company and Trinity (ECF No. 460). See Order (ECF No. 464).
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VCM.
ECF No. 119 at PageID #: 1442, ¶ 167. Norfolk Southern also alleges that “[t]he vent
and burn and release of hazardous vinyl chloride was the direct result of the improper shipping
containers and Oxy Vinyls’ failure to follow federal regulations and its own SDS.” ECF No. 119
at PageID #: 1442, ¶ 172.
OxyVinyls retained Mr. Peter Harnett, an expert on hazard communication, emergency
response, risk assessment, safety, and industrial hygiene. Norfolk Southern seeks to exclude
certain of Mr. Harnett’s opinions. 2
II.
Legal Standard
The Federal Rules of Evidence, and specifically Rule 702, “assign 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. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Rule 702
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 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. FED. R. EVID. 702. In United States v. Lang, 717
Fed.Appx. 523 (6th 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 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.
2
Norfolk Southern seeks the exclusion of certain of Mr. Harnett’s opinions. For
efficiency and as done on its previous orders, the Court will rule on the exclusion of
certain opinion evidence. See 01/22/2025 Order, ECF No. 738 a PageID #: 51971 n.2. If
an opinion is excluded, no testimony or report on those topics may be admitted.
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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)).
Furthermore, a Daubert analysis includes consideration of Fed. R. Evid. 403. Id., 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
A. Mr. Harnett is qualified to opine on emergency response and SDS.
Mr. Harnett describes himself as a scientist with thirty-five years of experience as an
industrial hygienist. See Expert Report of Peter Harnett, ECF No. 623-3 at PageID #: 33834–35
(citing his “Statement of Qualifications”). He explains that, “[a]n industrial hygienist is a health
and safety processional trained in the anticipation, recognition, evaluation, and control of
occupation health and safety hazards. . . . Specific responsibilities may include chemical hazard
communication, assessment of chemical and physical agent exposure, workplace audits, review
of occupational and environmental health reports, review and summary of analytical data, and
report writing.” ECF No. 623-3 at PageID #: 33834–35. Norfolk Southern argues that Mr.
Harnett “lacks relevant experience with train derailments, the polymerization of VCM, vent and
burns, and emergency response.” ECF No. 623-1 at PageID #: 33819 (capitalization altered).
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Mr. Harnett’s experience includes emergency decision making generally, and more
specifically, he has experience with chemical releases and field safety. See ECF No. 623-3 at
PageID #: 33834–35 (“Statement of Qualifications.”). The Court finds Mr. Harnett’s “lack of
specialized specific knowledge” is of “little consequence” to Mr. Harnett’s qualifications; rather,
his lack of specified knowledge “cut[s] against the weight given to his opinion.” Palatka v.
Savage Arms, Inc., 535 F. App’x 448, 455 (6th Cir. Aug. 9, 2013) (finding an expert on
mechanical engineering competent to testify on firearms even though he was not a firearms
expert because he was competent to offer opinions on various mechanical topics).
B. Mr. Harnett’s opinions on emergency response and SDS are reliable.
Norfolk Southern argues that Mr. Harnett’s opinions are unreliable because he engaged in
cherry-picking of evidence, and did not have a reliable methodology or any methodology at all.
See ECF No. 623-1 at Page ID #: 33822–26. Norfolk Southern asserts that Mr. Harnett ignored
contradictory evidence in rendering his SDS opinion and that he lacked reliable methodology in
rendering his emergency response opinion.
Rather than cherry-pick, OxyVinyls responds that Mr. Harnett applied a reliable
methodology. OxyVinyls asserts that Mr. Harnett considered the “mounds of evidence” Norfolk
Southern claims he ignored but found that evidence to “not bear on the question of whether
OxyVinyls’ SDS properly complied with the requirements of OSHA [Hazard Communication
standard (“HCS”)].” ECF No. 669 at PageID #: 46406–07. OxyVinyls explains that Mr.
Harnett’s methodology followed multi-step, industry accepted risk assessment principles, and
other “accepted industry and government standards and procedures” which he compared with the
emergency response. ECF No. 669 at PageID #: 46409–10.
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On the record before it, the Court finds that Mr. Harnett’s opinions on risk assessment,
emergency response, and SDS are reliable. Mr. Harnett did not base his opinion “only on facts
that ‘plainly contradict’ undisputed evidence.” Lang, 717 F. App’x at 536 (agreeing that the
“sufficiency” of an expert’s factual basis means cherry-picking data is just as bad as omitting it
or making it up altogether). He did not ignore or omit contradictory evidence but weighed all the
evidence to determine which was more relevant to his methodology and analysis. See ECF No.
669 at PageID #: 46406 (citing, for example, Mr. Harnett’s deposition to prove that he
considered the testimony and found it did not bear on whether OxyVinyls’ SDS complied with
OSHA HCS’s requirements). See also ECF No. 623-3 at PageID #: 33840–42 (finding that the
process by which OxyVinyls created the SDS “relied upon appropriate and reliable scientific
sources”) (capitalization altered). Mr. Harnett also explains his methodology in his opinion. See
ECF No. 623-2 at PageID #: 33838–40 (explaining “OSHA’s Hazard Communication Standard
(HCS) . . . Department of Transportation PHMSA Emergency Response Guidebook . . . [and]
Risk Assessment and Decision-Making Analysis”). Therefore, the Court finds that Mr. Harnett’s
opinions on risk assessment, SDS, and emergency response are reliable and based on reliable
methodology.
C. Mr. Harnett is not qualified to opine on confirmation bias.
While Mr. Harnett is qualified to opine as ruled above, he is not qualified to opine on
whether Norfolk Southern, its representatives, and Unified Command acted with confirmation
bias.
Norfolk Southern points out that Mr. Harnett lacks any qualifications in psychology from
which to opine on confirmation bias. See ECF No. 623-1 at PageID #: 33821. Norfolk Southern
also argues that Mr. Harnett’s confirmation bias opinion is based on an article in a magazine,
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which is not an academic journal or psychological research, and supplies no principles,
methodology, or justification for this opinion. ECF No. 623-1 at PageID #: 33826–27.
OxyVinyls’ argument, that Mr. Harnett has sufficient expertise on risk assessment and
emergency response, and that this background in risk assessment permits his opinion on whether
Norfolk Southern and its contractors exhibited confirmation bias, is unpersuasive. ECF No. 669
at PageID #: 46411–12. The Court finds OxyVinyls’ insistence that Mr. Harnett need not be a
psychologist or possess any social science discipline before reliably testifying about failures to
maintain objectivity in Norfolk Southern’s decision-making regarding the vent and burn equally
unpersuasive. ECF No. 669 at PageID #: 46412.
Confirmation bias is the label given to “people’s tendency to process information by
looking for, or interpreting, information that is consistent with their existing beliefs.”
Confirmation Bias, BRITANNICA, (Dec. 17, 2024),
https://www.britannica.com/science/confirmation-bias (last accessed Jan. 27, 2025) (categorizing
“confirmation bias” under “Psychology & Mental Health”). This psychological concept requires
an understanding of a person’s motivations, decision-making, and information process, which
would require an understanding of the psychology of humans, generally, as well as the specific
individual. Nowhere in Mr. Harnett’s extensive curriculum vitae is there a single mention of
psychology or any psychology-related qualifications. See Mr. Harnett’s Curriculum Vitae, ECF
No. 623-3 at PageID #: 33874– 79. Thus, Mr. Harnett’s opinion that Norfolk Southern or its
contractors exhibited confirmation bias is excluded. See ECF No. 623-3 at PageID #: 33862–64
and PageID #: 33867.
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IV.
Conclusion
Norfolk Southern’s Motion to Exclude (ECF No. 623) is granted in part and denied in
part. Because the Court finds that Mr. Harnett’s opinions on risk assessment, SDS, and
emergency response are reliable and based on reliable methodology, the motion to exclude them
is denied. Because Mr. Harnett is not qualified to opine on confirmation bias, the opinions he
rendered on that topic are excluded. Accordingly, Section VI(B) and conclusion Section
VII(C)(2) of his report are excluded.
IT IS SO ORDERED.
January 27, 2025
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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