United States District Court, S.D. New York
Donovan G. Hewitt, Plaintiff,
Metro-North Commuter Railroad, Defendant.
MEMORANDUM & ORDER
J. NATHAN, District Judge.
action brought pursuant to the Federal Employers'
Liability Act ("FELA"), Defendant Metro-North
Commuter Railroad ("Metro-North") has filed a
Daubert motion and a motion for partial summary
judgment. The crux of Metro-North's motion is that much
of the testimony of Plaintiff s ergonomics expert, Dr.
Andres, should be excluded as unreliable. As explained below,
the Court concludes that Dr. Andres' expert opinion is
admissible. The Court therefore denies Metro-North's
motion to preclude Dr. Andres' testimony. Because
Metro-North's partial summary judgment motion and motion
to exclude another expert's testimony are premised on the
exclusion of Dr. Andres' testimony, the Court also denies
those two motions.
Donovan Hewitt has brought this FELA action against his
former employer, Metro-North. Metro-North is a railroad
company located in New York. Amend. Compl. ¶ 4 (Dkt No.
56); Plaintiffs Rule 56.1 Statement ¶ 2 (Dkt No. 91).
Hewitt worked for Metro-North from 2004 to 2014. Plaintiffs
Rule 56.1 Statement ¶¶ 6, 88. From 2007 to 2014,
Hewitt worked as an "E-Cleaner" or "coach
cleaner" at Metro-North's Highbridge facility.
Plaintiffs Rule 56.1 Statement ¶¶ 6, 88. This job
was allegedly very physically demanding, as it entailed
cleaning "every surface" in a railroad car,
including the ceiling, walls, windows, floor, bathrooms, and
seats. Plaintiffs Rule 56.1 Statement ¶ 23. This work
required Hewitt to "use his arms constantly, "
including by reaching to clean high spaces, wringing out a
mop, lifting heavy items, and removing or "popping"
seat cushions. Plaintiffs Rule 56.1 Statement ¶¶ 7,
198, 214. According to Hewitt, the job was especially
demanding because Metro-North frequently understaffed the
coach cleaning division. Plaintiffs Rule 56.1 Statement
¶ 38; Def. Ex. B at 14-15(DktNo. 70-2).
alleges that, as a result of his work as a coach cleaner for
Metro-North, he suffered certain injuries to his shoulders
and arms. Plaintiffs Rule 56.1 Statement ¶¶ 1, 58.
Multiple MRIs revealed that Hewitt suffered from, among other
things, a torn rotator cuff, tendinosis in both his shoulder
and elbow, shoulder impingement syndrome, and shoulder joint
adhesions. Plaintiffs Rule 56.1 Statement ¶¶
199-202, 209, 238. Over the span of approximately one year,
Hewitt underwent three surgeries to attempt to fix these
problems. Plaintiffs Rule 56.1 Statement ¶ 201, 204,
210. He also attended physical therapy. Plaintiffs Rule 56.1
Statement ¶ 211.
October 6, 2014, Hewitt filed the present lawsuit. Dkt No. 1.
His lawsuit alleges that the injuries to his shoulder and
elbow were caused by Metro-North's failure to provide
necessary tools, supervision, training, and manpower during
his time as a coach cleaner. Amend. Compl. ¶ 16. The
core of Hewitt's complaint is that Metro-North failed to
"use reasonable care to provide [him] with a reasonably
safe place in which to work" in violation of FELA.
Amend. Compl. ¶¶ 2, 13, 16.
support his claims, Hewitt retained the services of Dr.
Robert Andres, a bioengineer and ergonomist. Plaintiffs Rule
56.1 Statement ¶¶ 118-19; Opp. at 6 (Dkt No. 90).
"Ergonomics is the science of fitting workplace
conditions and job demands to the capabilities of the working
population." Ahmed v. Keystone Shipping Co.,
No. 10-14642, 2012 WL 5300094, at *5 (E.D. Mich. Oct. 25,
2012). This science focuses on ensuring a proper
"fit" between a job and worker in order to increase
productivity and avoid injuries. Id.; Def. Ex. B at
Andres was retained for the purposes of assessing
Hewitt's exposure to ergonomic risk factors while working
as a cleaner for Metro-North. Def. Ex. B at 2. Ergonomic risk
factors are "work-related factors that may pose a risk
of musculoskeletal disorders." Ahmed, 2012 WL
5300094, at *5. "Common examples" include
"repetitive, forceful, or prolonged exertions of the
hands; frequent or heavy lifting, pushing, pulling, or
carrying of heavy objects; and prolonged awkward
postures." Id. Dr. Andres reviewed Hewitt's
various job tasks, including lifting seat cushions, scrubbing
overhead luggage racks, and cleaning various other parts of a
Metro-North railroad car. Def. Ex. 13-19, 32-33. He concluded
that these tasks exposed Hewitt to multiple ergonomic risk
factors, including "awkward upper extremity
postures" and repetitive hand gestures. Id. at
18. Dr. Andres also concluded that the amount of force that
it required a cleaner such as Hewitt to remove a seat cushion
in a Metro-North car exceeded recommended limits.
Id. at 21-32.
addition to analyzing Hewitt's exposure to ergonomic risk
factors, Dr. Andres also reviewed Metro-North's approach
to mitigating its employees' exposure to such factors.
Id. at 2, 40-41. According to Dr. Andres,
Metro-North failed to take a number of actions that could
have limited Hewitt's exposure to ergonomic risk factors,
including failing to perform an ergonomic screening or job
analysis, failing to provide adequate tools to remove seat
cushions, and failing to provide ergonomic training to
employees. Id. at 40-41. Based on these
observations, Dr. Andres concluded that it was his
"opinion to a reasonable degree of ergonomic certainty
that [Metro-North] failed to provide Mr. Hewitt with a
reasonable safety and health program that dealt with
ergonomic issues that met standard industry work
practices." Id. at 41. In reaching his
conclusions, Dr. Andres relied upon various materials,
including Hewitt's deposition transcripts, an interview
with Hewitt, the deposition transcripts of other Metro-North
employees, Hewitt's medical records, Metro-North's
car cleaning manual, Metro-North's "Medical
Guidelines for Coach Cleaner, " and various scientific
articles and literature. Id. at 3-5. Dr. Andres also
conducted a site inspection of Metro-North's Highbridge
facility on October 5, 2015. Id.; see Dkt No. 39.
Metro-North hired its own ergonomics expert, Dennis Mitchell,
who issued a report criticizing Dr. Andres' findings and
methodology. Def. Ex. P (Dkt No. 70-17).
also asked his treating orthopedic surgeon, Dr. Victor
Sasson, to testify as an expert. Dr. Sasson started treating
Hewitt in 2014 for his various shoulder and elbow injuries,
and he was the doctor that performed the surgeries on
Hewitt's arm. Plaintiffs Rule 56.1 Statement ¶¶
7, 198-211. Dr. Sasson was asked to provide a summary of his
evaluation and treatment of Hewitt and to opine on the cause
of Hewitt's injuries. Plaintiffs Rule 56.1 Statement
¶ 197; Def. Ex. N at 1 (Dkt No. 70-15). Accordingly, Dr.
Sasson issued a report that outlines Hewitt's medical
history. Def. Ex. N at 1-3. Dr. Sasson also conducted a
differential diagnosis - a process through which a physician
determines what has caused a patient's symptoms by
"consider[ing] all relevant potential causes of the
symptoms and then eliminat[ing] alternative causes based on a
physical examination, clinical tests, and a thorough case
history, " see Hardyman v. Norfolk & W. Ry
Co., 243 F.3d 255, 260 (6th Cir. 2001) - in order to
determine the cause of Hewitt's injuries. Dr. Sasson
ultimately concluded that "Hewitt's job as a Metro
North Railroad coach cleaner . . . was a significant
contributing cause (not the sole cause) of the
injuries/conditions and symptoms [Dr. Sasson] ha[d] treated
him for and operated upon." Def. Ex. N at 14. To reach
this conclusion, Dr. Sasson relied on, inter alia,
Hewitt's medical history, Metro-North's "Medical
Guidelines for Coach Cleaner, " Hewitt's deposition
transcripts, and Dr. Andres' preliminary report.
Id. at 3-4.
March 30, 2016, Metro-North filed a motion for partial
summary judgment. Dkt No. 69. The primary argument in this
motion is that, with the exception of his opinions related to
seat removal, Dr. Andres' proposed expert testimony is
inadmissible under Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993). Mot. at 11-22 (Dkt No. 72).
The company also seeks to exclude Dr. Sasson's testimony
on the ground that he relied upon Dr. Andres' purportedly
inadmissible opinion. Mot. at 22-23. Finally, Metro-North
argues that, without the testimony of Dr. Andres and Dr.
Sasson, Hewitt does not have sufficient evidence to prove his
claims, with the exception of his allegation that his
"injury was allegedly cause[d] by car seat
removal." Mot. at 24. The company therefore asks the
Court to "dismiss  all claims in plaintiffs Amended
Complaint other than those regarding alleged injuries
sustained by plaintiff due to removal of seat cushions on
Metro-North trains." Mot. at 25.
Federal Employers' Liability Act
brought suit pursuant to the Federal Employers' Liability
Act ("FELA"). FELA is '"a broad remedial
statute' whose objective is 'to provide a federal
remedy for railroad workers who suffer personal injuries as a
result of the negligence of their employer.'"
Green v. Long IslandR.R. Co., 280 F.3d 224,
229 (2d Cir. 2002) (quoting Atchison, Topeka & Santa
Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62 (1987)). The
statute states, in relevant part, that:
Every common carrier by railroad . . . shall be liable in
damages to any person suffering injury while he is employed
by such carrier ... for such injury or death resulting in
whole or in part from the negligence of any of the officers,
agents, or employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence, in its cars,
engines, appliances, machinery, track, roadbed, works, boats,
wharves, or other equipment.
Goodrich v. Long Island R.R. Co., 654 F.3d 190, 193
(2d Cir. 2011) (ellipses in original) (quoting 45 U.S.C.
§ 51). In short, "the statute creates liability for
the 'negligence' of a common carrier by railroad
resulting in 'injury or death' to a worker."
Id. To succeed on a claim under FELA, a plaintiff
"must prove the traditional common law elements of
negligence." Tufariello v. Long Island R.R.
Co., 458 F.3d 80, 87 (2d Cir. 2006). However, the
plaintiffs burden "is lighter under FELA than it would
be at common law, " id., as this Circuit
applies "a relaxed standard of negligence" in FELA
cases, Williams v. Long Island R.R. Co., 196 F.3d
402, 406 (2d Cir. 1999).
Rule of Civil Procedure 56 authorizes a court to grant
summary judgment to a moving party "if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
A fact is "material" if it "might affect the
outcome of the suit under the governing law, " and it is
"genuinely in dispute" if "the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party." Roe v. City of Waterbury, 542
F.3d 31, 35 (2d.Cir. 2008) (quoting Anderson v. Liberty
Lobby, Inc., Ml U.S. 242, 248 (1986)). When deciding a
motion for summary judgment, the Court must resolve all
ambiguities and draw all inferences in favor of the party
against whom summary judgment is sought. Gallo v.
Prudential Residential Servs., 22 F.3d 1219, 1223 (2d
Cir. 1994). The moving party has the initial burden of
demonstrating that no genuine issue of material fact exists.
Id. If the moving party satisfies this burden, then
"the opposing party must come forward with specific
evidence demonstrating the existence of a genuine dispute of
material fact" to survive summary judgment. Brown v.
Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)
Rule of Evidence 702 governs the admissibility of expert
testimony. That rule states:
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:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence ...