JAMES E. GRAHAM, Magistrate Judge.
This cause of action is based on Plaintiff's contentions that Defendant is liable under the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq., for injuries he sustained when he slipped and fell during the performance of his duties on January 3, 2011, in the rice yard of Defendant's railroad facility in Waycross, Georgia. (Doc. No. 1). Presently before the Court is Defendant's Motion to Exclude Testimony of Plaintiff's Expert Witness Michael J. O'Brien. (Doc. No. 28). Plaintiff filed a Response. (Doc. No. 32).
Defendant asserts O'Brien does not provide actual expert opinions; rather, Defendant maintains, O'Brien affirms Plaintiff's version of events without employing any expert analysis. Defendant alleges O'Brien merely restates as an expert opinion "clearly understandable" Federal Railroad Administration ("ERA") regulations and speculates as to their applicability to the facts of this case. (Doc. No. 28, p. 2). Defendant also alleges O'Brien offers testimony as to causation and comparative fault which is beyond the scope of his expertise. Defendant contends O'Brien opines that parts of the locomotive which played no role in the alleged incident violated FRA regulations. Defendant avers O'Brien's opinions are unreliable and lacking an evidentiary foundation. Defendant contends several of O'Brien's opinions are irrelevant to the issues before the Court. Accordingly, Defendant asserts O'Brien's testimony should be excluded.
In response, Plaintiff asserts O'Brien has extensive and specialized experience with "the operation at issue in this case." (Doc. 32, p. 2). Plaintiff also asserts O'Brien personally inspected the locomotive involved in the incident, studied the evidence generated in this case, and applied his specialized knowledge to the evidence in a reliable way. According to Plaintiff, O'Brien's testimony and opinions are relevant and will assist the trier of fact understand the evidence and the standards of care for the equipment involved.
In
Fed. R. Evid. 702. The Court of Appeals for the Eleventh Circuit has set forth a three-part inquiry for courts to consider when determining the admissibility of expert testimony. This Court must consider whether:
For the first prong, "experts may be qualified in various ways. While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status."
The reliability "criterion remains a discrete, independent, and important requirement for admissibility."
Lastly, expert opinion testimony must assist the trier of fact.
Defendant contends O'Brien, a former ERA inspector, has no expertise in mechanical engineering, ergonomics, accident reconstruction, biomechanics, or medicine. Defendant also contends O'Brien has no college degree and earned his General Equivalency Diploma ("GED") after he dropped out of high school. (Doc. No. 28, p. 5) (citing Doc. No. 28-4, pp. 51-52, 59). Defendant asserts that O'Brien never worked on the type of locomotive involved in this case because these locomotives did not exist during the time he worked in the railroad industry, and he has no specific recollection of ever inspecting these types of locomotives when he was an FRA inspector. Defendant also asserts O'Brien's former positions as an FRA inspector and a railroad employee do not qualify him to offer expert testimony about the conditions of the walkway on the date of the incident or whether Plaintiff was at fault in any way. Instead, Defendant maintains, O'Brien parrots Plaintiff's testimony about the incident and speculates that Plaintiff's version of events is correct.
Plaintiff contends O'Brien has over forty (40) years' experience in the railroad industry, during which time he learned the proper condition for locomotive passageways and steps and how to inspect and maintain these and other locomotive structures. Plaintiff also contends O'Brien is familiar with the minimum federal requirements for passageways and steps and worked for the federal agency responsible for enforcing these requirements. Plaintiff cites to O'Brien's employment history as a locomotive machinist, a Motive Power & Equipment ("MP&E") inspector, an MP&E safety inspector and specialist, and a consultant. (Doc. No. 32, pp. 7-9). Plaintiff asserts it is immaterial that O'Brien does not have a college degree because he offers his expert opinion based on his experience, not any educational level.
In determining whether O'Brien is qualified to render an expert opinion in this case, the undersigned reviewed the parties' briefs and supporting materials. O'Brien sets forth his experience in the railroad industry. O'Brien began his railroad career in 1968 as a machinist with the Erie Lackawanna Railroad, and his career continues to this day as a consultant on railroad matters. (Doc. No. 28-1). The undersigned notes that O'Brien does not hold a college degree, but this is not necessarily a prerequisite for O'Brien to be qualified to offer expert opinions. In addition, it is immaterial that O'Brien has no experience or expertise in the areas of mechanical engineering, ergonomics, accident reconstruction, biomechanics, or medicine. "While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status."
Defendant states that O'Brien reviewed Plaintiff's version of the alleged incident and inspected the road locomotive more than three and a half years after the date of the alleged incident. Defendant notes O'Brien concludes, without any factual basis, that the locomotive was "in use" on the date of the incident while it was on a shop track for horn testing for purposes of ERA regulations. Defendant contends that O'Brien's opinion as to the categorization of the passageway lacks factual foundation. Defendant also contends that O'Brien's opinions are "merely given to apply ERA regulations to the locomotive and allege that violations of these regulations caused Plaintiff's injury." (Doc. No. 28, p. 10).
Plaintiff asserts O'Brien relied on facts and data he reviewed in a reliable way, in addition to his relevant railroad experience, to form his opinions in this case. Plaintiff also asserts O'Brien employed the same process in this case as he did when he inspected locomotives and investigated incidents for the FRA, including reviewing case specific materials, inspecting the equipment involved, reviewing the applicable regulations, and applying his specialized knowledge of railroad practices and procedures. Plaintiff avers O'Brien's specialized knowledge as to the regulations and industry standards which govern locomotive inspections, maintenance, and repairs is "particularly pertinent" in this case because government regulation and CSX manuals specify the proper conditions for locomotive passageways and stairs. (Doc. No. 32, p. 18). Plaintiff alleges O'Brien's experience provides a reliable foundation for his opinions concerning the deficiencies in the locomotive involved and Defendant's practices for inspecting and maintaining locomotives. Plaintiff also alleges a jury may choose to credit Plaintiff's testimony about the condition of the locomotive, and if it does, the jury should be informed to evaluate the significance of the walkway surface being greasy and lacking anti-slip features where Plaintiff fell.
Defendant's objection to O'Brien's methodology and practices goes to their weight, not their admissibility, and counsel can cross-examine O'Brien during the trial of this case. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."
Defendant maintains that the FRA regulations upon which O'Brien relies are clearly worded and easily understandable, and O'Brien's testimony as to the applicability of these regulations will not assist the jury. Defendant contends that O'Brien should not be allowed to instruct the jury on the law, as that is for the trial judge to do.
Plaintiff asserts the facts at issue in this case include whether the locomotive was in a safe condition, whether Defendant was negligent in its practices relating to the inspection, maintenance, and safety, and whether Defendant violated federal regulations pertaining to this locomotive. Plaintiff alleges O'Brien's opinions relate to whether: the walkway had anti-slip treatment and features required by the standard of care; the presence of greasy liquid on a locomotive walking surface in the area where the Plaintiff fell is an unsafe condition which deviates from the applicable standard of care; and a proper inspection of the locomotive would have uncovered these hazards to safe and secure footing. According to Plaintiff, the only jurors who will have a working knowledge of the railroad procedures or the proper condition of locomotive walking surfaces are those potential jurors who have worked in or closely studied the railroad industry.
Contrary to Defendant's assertion, the Federal Regulations at issue are not so plainly worded that the average lay person could understand them. Rather, O'Brien's testimony as to what regulations are applicable and what, if any, standard of care Defendant owed to Plaintiff would be helpful to the trier of fact and is admissible. Nevertheless, O'Brien shall not be permitted to provide testimony as to whether Defendant breached that duty of care, causing Plaintiff to slip and fall and injure himself. Such testimony reaches a legal conclusion in this case, and that conclusion rests with the trier of fact. In addition, O'Brien did not inspect the site of Plaintiff's alleged accident and injury until more than three and a half years later, and there is nothing before the Court, other than Plaintiff's testimony, as to the condition of this area at that time. Accordingly, O'Brien cannot testify as to the condition of the walkway on January 3, 2011, as such testimony would be speculative and duplicative of Plaintiff's testimony. However, O'Brien can offer his opinion in response to any hypothetical question as to conditions of the walkway and how those hypothetical conditions would violate any applicable regulations.
Based on the foregoing reasons, Defendant's Motion to Exclude Testimony of Plaintiff's Expert Witness Michael O'Brien is
