Sigman et al v. CSX Corporation et al

Filing 274

OMNIBUS ORDER denying Plaintiffs' 223 MOTION for Partial Summary Judgment; granting Defendant's 228 MOTION in Limine to Exclude Evidence of the EPA Administrative Order on Consent; denying Defendant's 232 MOTION in Limine to Excl ude Plaintiffs' Expert Dr. April Watkins; granting in part Defendant's 233 MOTION in Limine to Exclude Plaintiffs' Expert Samuel Wood; holding in abeyance Defendant's 224 Motion for Summary Judgment; directing Plaintiffs to file a Surreply on or before 3/2/2018 and Defendant to file a Surresponse on or before 3/6/2018; holding in abeyance Defendant's 227 Motion in Limine to Exclude Evidence of Other Plaintiffs; directing the parties to provide the Court with a si gnal by the end of the business day on 3/5/2018 regarding the parties' progress on this stipulation and any need for judicial intervention to resolve the question; holding in abeyance Defendant's 229 Motion in Limine to Exclude Any Refere nce, Testimony, or Evidence of Prior Derailments and Rail Defects; holding in abeyance Defendant's 230 Motion in Limine to Advise Jury as to the Settlement of Plaintiffs' Claims Against Sperry Rail, Inc.; holding in abeyance Defendant 9;s 231 Motion in Limine to Exclude, or in the Alternative Limit, Evidence of CSXT's Financial Condition and Conditional Motion to Bifurcate Punitive Damages. Signed by Judge Robert C. Chambers on 2/28/2018. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

BRANDY SIGMAN, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 3:15-13328

CSX CORPORATION and
CSX TRANSPORTATION INC.,
Defendants.
OMNIBUS ORDER
Pending before the Court are nine motions filed in anticipation of the impending trial date.
In order to hear further argument on these motions, the Court held a Status Conference and Motions
Hearing on Monday, February 26, 2018. During the nearly three-hour hearing, the Court ruled
from the bench on a few of the currently pending motions. This Omnibus Order seeks to clarify
and formalize those rulings.
Upon consideration of the briefing and oral argument, the Court took the following action
with regard to four of the currently pending motions: (1) DENIED Plaintiffs’ Motion for Partial
Summary Judgment (ECF No. 223); (2) GRANTED Defendant’s Motion in Limine to Exclude
Evidence of the EPA Administrative Order on Consent (ECF No. 228); (3) DENIED Defendant’s
Motion in Limine to Exclude Plaintiffs’ Expert Dr. April Watkins (ECF No. 232); and (4)
GRANTED, IN PART, Defendant’s Motion in Limine to Exclude Plaintiffs’ Expert Samuel
Wood (ECF No. 233).
The Court took the five remaining motions under advisement, and will HOLD IN
ABEYANCE consideration of the following five motions, until such time as the Court is prepared

to rule: (5) Defendant’s Motion for Summary Judgment (ECF No. 224); (6) Defendant’s Motion
in Limine to Exclude Evidence of Other Plaintiffs (ECF No. 227); (7) Defendant’s Motion in
Limine to Exclude Any Reference, Testimony, or Evidence of Prior Derailments and Rail Defects
(ECF No. 229); (8) Defendant’s Motion in Limine to Advise Jury as to the Settlement of Plaintiffs’
Claims Against Sperry Rail, Inc. (ECF No. 230); and (9) Defendant’s Motion in Limine to Exclude,
or in the Alternative Limit, Evidence of CSXT’s Financial Condition and Conditional Motion to
Bifurcate Punitive Damages (ECF No. 231).
The Court will address each of the nine motions in turn. First, the Court will address those
motions upon which it has made a ruling, and will expound upon the rationale provided during the
hearing. Second, the Court will address the motions for which the Court has yet to take action.
However, for those not yet adjudicated motions, the Court will delineate the directions for
additional action and the expectations regarding the parties’ steps to attempt to resolve these
motions without the need for a judicial determination.
1. Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 223)
In their Motion for Partial Summary Judgment, Plaintiffs move the Court to reach four
findings: (1) that Defendant has a non-delegable duty with regard to any violations of the Federal
Railroad Administration’s (“FRA”) Track Safety Standards (“TSS”) regulations because it is the
track owner; (2) that Defendant is vicariously liable for the negligence of its subcontractor, Sperry
Rail, Inc, for the damages arising from the February 16, 2015 train derailment in Mt. Carbon, West
Virginia; (3) that Defendant is jointly and severally liable for those damages; and (4) that the
vertical split head (“VSH”) defect that caused the derailment is the type of defect that Defendant
would be required to take certain action to address under the regulations. Pls.’ Mot. for Partial
Summ. J., ECF No. 223, at 1-2.

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Plaintiffs appear to request that the Court make legal rulings which depend upon certain
findings of fact. The Court, however, refuses to take that action. The factual issues underlying
Plaintiffs’ request are disputed, and fit for the jury’s consideration. Further, the Court will not
make legal findings that are contingent upon a jury’s findings of fact. Instead of meandering in the
hypothetically necessary application of law at the summary judgment stage, the Court will take up
the issues of law upon consideration of the jury instructions. Therefore, the Court denies plaintiffs’
motion because the questions presented are premature at this time.
2. Defendant’s Motion in Limine to Exclude Evidence of the EPA Administrative
Order on Consent (ECF No. 228)
Defendant moved the Court, in limine, to exclude the use of, or reference to, an
Administrative Order on Consent (“EPA Order”) Defendant entered into with the Environmental
Protection Agency. Def.’s Mot. to Exclude EPA Order, ECF No. 228, at 1. Defendant argued that
the Court should exclude the EPA Order due to its irrelevance and substantial level of probable
prejudice against Defendant. See generally id. Defendant noted that a majority of the EPA Order
concerns escaped oil from the derailed train, and the legal ramifications of that spilled oil under
the Clean Water Act. See id. at 2. Additionally, Defendant pointed to the express provisions of the
EPA Order that state that nothing in the order shall be construed as an admission of fact. Def.’s
Reply, ECF No. 261, at 2. Plaintiffs countered that the Court should allow the use of the EPA Order
because it provides an accurate factual recitation of the events, and demonstrates the continuing
impact of the derailment on Plaintiffs’ community. See generally Pls.’ Resp. to Def.’s Mot. to
Exclude EPA Order, ECF No. 246.

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The Court agrees with Defendant because the EPA Order would substantially prejudice
Defendant in the eyes of the jury, and Plaintiffs can adduce facts regarding the ongoing impact of
derailment through competent witnesses.
Defendant correctly asserts that a consent order with a governmental agency carries
inordinate weight in the eyes of the jury, which will likely construe the EPA Order as an admission
of wrongdoing. See Def.’s Mot. to Exclude EPA Order, at 3 (citing Dahlgren v. First Nat. Bank of
Holdrege, 533 F.3d 681, 699 (8th Cir. 2008)). Additionally, Plaintiffs can achieve their purpose
of showing the ongoing nature of the derailment’s effects through the testimony of their scheduled
witnesses. Comparing the significant threat of prejudice with the rather minimal probative value
of the EPA order, the former substantially outweighs the latter. Therefore, the Court grants
Defendant’s motion.
However, the Court reserves the right to reconsider and revise this ruling if Defendant
opens the door through which the EPA Order may enter. But, the Court will take that issue up at
the appropriate time if it presents itself.
3. Defendant’s Motion in Limine to Exclude Plaintiffs’ Expert Dr. April Watkins
(ECF No. 232)
Defendant challenges the reliability and helpfulness of the testimony of Dr. April Watkins,
Plaintiffs’ designated psychological expert. See generally Def.’s Mot. to Exclude Dr. Watkins, ECF
No. 232. Dr. Watkins met with the six named plaintiffs that are scheduled to go to trial in March
of this year (“Bellwether Plaintiffs”). Dr. Watkins rendered a report and respective diagnostic
impressions for each of the Bellwether Plaintiffs. See Ex A-D to Def.’s Reply, ECF No. 257.
Although she generally found that four of the Bellwether Plaintiffs exhibited variations of
“Adjustment” or Anxiety Disorders, she did find that two of the Bellwether Plaintiffs did not

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demonstrate any signs symptomatic of a diagnostic impression. Def.’s Mot. to Exclude Dr.
Watkins, at 2-3.
Defendant claims that Dr. Watkins’ diagnostic impressions fail the Daubert reliability
requirement. See id. at 3-8. As one of its argumentative prongs, Defendant claims that Dr. Watkins’
diagnostic impressions fail to reflect reliable methodology because she did not reach her
conclusion via a differential diagnosis. Id. at 3-4 (citing Westberry v. Gislaved Gummi AB, 178
F.3d 257, 262-63 (4th Cir. 1999)). Performing a differential diagnosis requires a medical
professional to review the totality of a patient’s relevant medical history and profile, in order to
eliminate all other potential causes for the diagnostic conclusion. While Defendant correctly finds
that differential diagnosis is an acceptable method for deriving medical conclusions as to
causation, the doctor’s process was sufficient in this case.
Because Dr. Watkins’ testimony involves issues of mental, as opposed to physical,
diagnosis, certain inherent difficulties present themselves. See Heller v. Doe by Doe, 509 U.S. 312,
323-24 (1993) (recognizing the difficulties inherent with mental illness). With this in mind, the
Court will allow Dr. Watkins to use her medical expertise to explain and identify the psychological
symptoms testified to by the Bellwether Plaintiffs, as well as any causal link between these
symptoms and the derailment events.
Additionally, contrary to Defendant’s position, Dr. Watkins’ testimony regarding the
meaning of her diagnostic impressions, and the practical effects of those impressions upon the
lives of the respective Bellwether Plaintiff, aides the trier of fact. As emphasized by the Court in
Daubert v. Merrell Dow Pharmaceuticals, Inc., an expert’s testimony must assist the trier of fact
in comprehending evidence or determining an issue of fact. 509 U.S. 579, 591 (1993) (citing Fed.
R. Evid. 702). Bellwether Plaintiffs are expected to detail their fear, sadness, anxiety, and other

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mental/emotional conditions both at the time of the derailment, and in the aftermath of it. As such,
Dr. Watkins will utilize her medical expertise to provide a nomenclature for Bellwether Plaintiffs’
symptoms, and provide a context for the quantum of seriousness involved with those conditions.
This will help the jury to determine whether Bellwether Plaintiffs’ mental/emotional symptoms
were merely “spurious,” or were capable of an impactful effect upon their lives. See Syl. pt. 11,
Marlin v. Bill Rich Constr., Inc., 482 S.E.2d 620, 623-24 (W. Va. 1996) (“A claim for emotional
distress without an accompanying physical injury can only be successfully maintained upon a
showing by the plaintiffs in such an action of facts sufficient to guarantee that the claim is not
spurious and upon a showing that the emotional distress is undoubtedly real and serious.”).
Furthermore, Defendant opposes Dr. Watkins’ testimony upon the ground that it would be
insufficient to establish the necessary standard for emotional distress damages under West Virginia
law. Def.’s Mot. to Exclude Dr. Watkins, at 10-11. In making that argument, Defendant focuses
upon cases in which a plaintiff made separate claims of either intentional or negligent infliction of
emotional distress. See id. (citing Courtney v. Courtney, 437 S.E.2d 436, 443 (W. Va. 1993) and
Tanner v. Rite Aid of West Virginia, Inc., 461 S.E.2d 149, 159 (W. Va. 1995)) However, in this
case, Plaintiffs have made no such claim. Instead, Plaintiffs have made claims of mental/emotional
damages relating to the torts to property. See Evans v. Mutual Mining, 485 S.E.2d 695, 701 n. 3
(W. Va. 1997) (“Our opinion today does not foreclose a recovery for mental anguish in a case
where only property is damaged.”). Therefore, Defendant has misplaced its reliance upon cases
dealing with intentional or negligent infliction of emotional distress. As such, the applicable
elements and standards of those claims do not apply, and Defendant’s argument fails.

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Consistent with this analysis, the Court denies Defendant’s motion, and will permit Dr.
Watkins to testify, conditioned upon the confining of that testimony to the information covered in
her report.
4. Defendant’s Motion in Limine to Exclude Plaintiffs’ Expert Samuel Wood (ECF
No. 233)
Defendant also challenges another of Plaintiffs’ experts, Samuel Wood. Mr. Wood is
Plaintiffs’ expert on the damages to Bellwether Plaintiffs’ houses and the cause of that damage.
Pls.’ Resp., ECF No. 248, at 1. Bellwether Plaintiffs plan to offer the testimony of Mr. Wood to
both describe the damage seen in their respective homes, as well as to offer a conclusion as the
cause of that damage. Although the Court will allow Mr. Wood to testify regarding the damage he
noticed during the inspections, it will not allow Mr. Wood to testify to the cause of any damages
he observed. Mr. Wood is a well-qualified and well-respected Professional Engineer. However, he
lacks the qualifications necessary to provide testimony regarding the effect of above ground
explosions upon structures at varying distances from these explosions.
Mr. Wood lacks the specialized knowledge in explosives, and their effects upon structures,
needed to offer an opinion linking the explosions resulting from the derailment with the damages
found in Bellwether Plaintiffs’ houses. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156
(1999) (providing that an expert must have “sufficient specialized knowledge to assist the jurors
in deciding the particular issues in the case”). Plaintiffs point to Mr. Wood’s thirteen-month stint
as a company commander of the 44th Engineering Battalion in South Korea to support his
qualifications to opine regarding damages caused by explosions. Pls.’ Resp., at 2. During this time,
Mr. Wood placed and calibrated explosives at the base rock quarry. Def.’s Mot. to Exclude Samuel
Wood, ECF No. 233, at 3. This experience did not lead Mr. Wood to familiarize himself with either

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“blasting or the proximity of the blasting,” or the effects of explosions upon structures. Id. (citing
Mr. Wood’s deposition).
In a state like West Virginia, where explosives experts abound due to the need for
controlled basting during the mining of the State’s coal, Plaintiffs’ failure to procure a qualified
explosives expert is troubling. Regardless, Plaintiffs’ may not now attempt to pass Mr. Wood off
for what he is not. Mr. Wood is an eminently qualified expert regarding the extent and quality of
structural damage. Therefore, the Court will allow Mr. Wood to testify regarding his description
of the damage he observed. However, the Court will not allow Mr. Wood to testify that the
derailment explosions caused this damage. As such, the Court grants Defendant’s motion, to the
extent that it seeks to preclude Mr. Wood from opining that the explosions caused the damage to
Bellwether Plaintiffs’ houses.
5. Defendant’s Motion for Summary Judgment (ECF No. 224)
The Court will continue take Defendant’s Motion for Summary Judgment (ECF No. 224)
under advisement. However, as noted at the hearing, the Court believes additional briefing on the
claims of trespass and nuisance is necessary. Therefore, the Court DIRECTS Plaintiffs to file a
Surreply on or before Friday, March 2, 2018, and Defendant to file a Surresponse on or before
Tuesday, March 6, 2018. Pending this additional briefing, the Court HOLDS IN ABEYANCE
consideration of this motion.
6. Defendant’s Motion in Limine to Exclude Evidence of Other Plaintiffs (ECF No.
227)
From the discussion at the hearing, the Court understands that the parties are working
toward resolving this motion by an agreed stipulation, without the need for a judicial ruling on the
matter. The Court will allow the parties an opportunity to reach a mutually agreeable solution.

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Therefore, the Court HOLDS IN ABEYANCE consideration of this motion. However, the Court
DIRECTS the parties to provide the Court with a signal by the end of the business day on
Monday, March 5, 2018, regarding the parties progress on this stipulation, and any need for
judicial intervention to resolve the question.
7. Defendant’s Motion in Limine to Exclude Any Reference, Testimony, or Evidence
of Prior Derailments and Rail Defects (ECF No. 229)
During the hearing, the Court understood that Plaintiffs agreed to limit evidence regarding
other rail defects to certain prior internal rail inspections. Defendant appeared to concur with
Plaintiff’s proposed limitation of certain internal rail inspections.
However, there continued to be a disagreement with regard to a 2011 discovery of a defect
on a separate rail that was located at, or close to, the point of derailment. Pending the continuing
discussions between the parties, the Court HOLDS IN ABEYANCE consideration of this motion,
regarding the 2011 discovery of a defect on the separate rail and the subsequent replacement of
that rail.
8. Defendant’s Motion in Limine to Advise Jury as to the Settlement of Plaintiffs’
Claims Against Sperry Rail, Inc. (ECF No. 230)
At the hearing, it appeared to the Court that there remains some fluidity in the respective
positions of the parties on this motion. In order to accommodate the parties’ progression on this
issue, the Court will allow the parties to discuss this, in an effort to resolve it without the need for
the Court’s determination. Therefore, the Court HOLDS IN ABEYANCE consideration of this
motion, pending the parties’ mutual agreement regarding this question.

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9. Defendant’s Motion in Limine to Exclude, or in the Alternative Limit, Evidence
of CSXT’s Financial Condition and Conditional Motion to Bifurcate Punitive
Damages (ECF No. 231)
In the course of considering Defendant’s Motion for Summary Judgment, the Court is
currently deliberating regarding Plaintiffs’ punitive damages claim. If the need should arise, the
Court will take up Defendant’s Motion in Limine to Exclude, or in the Alternative Limit, Evidence
of CSXT’s Financial Condition and Conditional Motion to Bifurcate Punitive Damages (ECF No.
231). However, as the adjudication of Defendant’s Motion for Summary Judgment may render
unnecessary this motion in limine, the Court HOLDS IN ABEYANCE consideration of this
motion.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER:

February 28, 2018

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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