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Hewitt v. Metro-North Commuter Railroad

United States District Court, S.D. New York

March 24, 2017

Donovan G. Hewitt, Plaintiff,
v.
Metro-North Commuter Railroad, Defendant.

          MEMORANDUM & ORDER

          ALISON J. NATHAN, District Judge.

         In this 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.

         I. Background

         Plaintiff 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).

         Plaintiff 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.

         On 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.

         To 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 1.

         Dr. 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.

         In 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).

         Hewitt 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.

         On 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.

         II. Legal Standards

         A. Federal Employers' Liability Act

         Hewitt 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).

         B. Summary Judgment

         Federal 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) (citation omitted).

         C. Expert Testimony

         Federal 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 ...

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