A railroad conductor appealed the order of the Philadelphia County Court of Common Pleas granting his employer, a local transportation authority’s motion for a new trial. The main point of the appeal was the admissibility of his liability expert.
On the night of his injury, Plaintiff stood in the vestibule of a railroad car holding a metallic grab iron (hand hold) attached to the wall of the car. Plaintiff said he felt a jolt of electricity surge into his hand holding the grab iron. He claimed to have suffered injuries as a result of this alleged shock. Following the incident, Defendant Transportation Authority took the railcar out of service and inspected it. After the inspection detected no defects, they returned the car to service.
At trial, Plaintiff presented the expert testimony of a liability expert. Before trial, in his preliminary expert report, he attributed the injury to a phenomenon called “spillover electricity.” This caused electrical arcing between the pantograph—the electrical coupling that extends from the top of a railway car to the overhead supply of electricity—above Plaintiff’s head and the uninsulated grab iron he was holding onto at the time of the incident, resulting in the electrocution and injury. The expert concluded that the hazardous and unsafe condition that resulted in Plaintiff’s injury could have been mitigated or eliminated by proper inspection and maintenance by the Transportation Authority, including wrapping the grab irons with an insulating material.
Defendant filed a Motion In Limine to preclude the opinions offered by the liability expert. It argued that, because the regulations promulgated by the Federal Railroad Administration (FRA) govern the railroad industry, the trial court should preclude multiple opinions expressed in the expert report under the doctrine of federal preemption.
Specifically, they argued that the trial court should preclude the liability expert from offering any opinions at trial that Transportation Authority violated a standard of care if that standard hasn’t been established by the FRA. In addition, since OSHA regulations are inapplicable to the incident at issue, the expert should be precluded from referring to OSHA or any other standards not expressly issued or approved by the FRA.
The trial court denied the motion without prejudice for Transportation Authority and said they could renew the motion at trial should inappropriate testimony require it.
At trial, the judge permitted extensive voir dire of Plaintiff’s liability expert’s qualifications. He acknowledged that the FRA regulates all aspects of the railroad industry and promulgates the controlling regulations to that end but conceded he hadn’t reviewed those regulations. The expert opined, however, that the federal regs had no relevance to his opinion because “[t]his [case] is a safety analysis of a failure of an electrical system that was, in my opinion, designed and manufactured properly but malfunctioned at the time of the event because of maintenance issues.” After voir dire, the Transportation Authority renewed its Motion In Limine. Following the argument, the trial judge denied the motion, qualified Plaintiff’s liability expert as an expert, and allowed him to testify without restrictions.
On direct examination, the expert didn’t testify that Plaintiff’s injuries resulted from a failure to insulate grab irons, as his report stated. Instead, he accused the Transportation Authority of negligence based on a failure to ensure proper spacing of rubber baffles between the train cars… baffles were never mentioned in his expert report. As a result, the trial court precluded this expert testimony. The expert also confirmed the conclusion from his report that the phenomenon of “spillover electricity” caused Plaintiff’s injuries.
Plaintiff’s expert admitted on cross-examination that he hadn’t read the pertinent federal regulations related to railroads and railcar inspections/maintenance or the rail car manufacturer’s specifications and manuals. He also conceded that electrical arcing between the pantograph and the catenary is normal. As to “spillover electricity,” the expert admitted the term doesn’t appear in any scientific or industry literature and that he’d created the term himself.
The Transportation Authority then moved to strike the expert’s testimony in its entirety. The trial court granted the motion to strike and instructed the jury to disregard all of the expert’s testimony. Nonetheless, the jury returned a verdict in favor of Plaintiff and awarded $500,000 in damages. The Transportation Authority moved for a new trial, which was granted. Plaintiff appealed, claiming that the trial court improperly struck the testimony of his expert.
Judge Christine Fizzano Cannon of the Pennsylvania Commonwealth Court noted in her opinion that railroad employees may recover damages for injuries under the FELA upon proof that the railroad was negligent in providing a reasonably safe place to work. In reviewing the admissibility of the liability expert, Judge Cannon cite Rule 702 and found that an appellate court won’t reverse the trial court’s decision absent an abuse of discretion. An abuse of discretion requires a result of manifest unreasonableness, partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous, the judge explained.
The judge said that during cross-examination, Plaintiff’s liability expert admitted that the term “spillover electricity” couldn’t be located in any reference manual that he’d consulted. He also admitted that he was unaware of any other case in the history of electric railroads that someone claimed that to have received a shock by merely standing in the rail car and holding onto a grounded metallic object.
Based on this testimony, the trial court granted the Transportation Authority’s motion to strike the expert’s testimony. The trial court reasoned that his testimony wasn’t sufficiently based on facts in evidence, failed to identify any specific failure on Transportation Authority’s part, failed to discuss the appropriate regulations, and was based on a new term outside the scientific literature that the expert himself had created.
Ultimately, the trial court explained it made a mistake in permitting the liability expert’s testimony to be presented to the jury. This determination was not manifestly unreasonable, Judge Cannon said, and didn’t misapply the law. Further, it wasn’t the result of partiality, prejudice, bias, or ill will.
Accordingly, the trial court acted within its discretion in striking Plaintiff’s liability expert’s testimony.
Ashby v. SEPTA, 2018 Pa. Commw. Unpub. LEXIS 199 (Pa. Cwth April 5, 2018)