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Loy v. Norfolk Southern Railway Co.

United States District Court, N.D. Indiana

June 10, 2015




This matter is before the Court on the Motion for Summary Judgment [ECF No. 28], filed by the Defendant, Norfolk Southern Railway Company, on November 18, 2013. The Defendant filed a Brief in Support [ECF No. 29] that same day. The Plaintiff filed a Response [ECF No. 32] on January 8, 2014. The Defendant filed a Reply [ECF No. 35] on February 10, 2014. On February 10, 2014, the Defendant also filed a Motion to Exclude Opinions of Colon R. Fulk Based on University of Michigan Ergonomics Study [ECF No. 36]. The Plaintiff filed a Response [ECF No. 37] on February 19, 2014. The Defendant filed a Reply [ECF No. 38] on February 22, 2014. On December 11, 2014, the Court issued an Order [ECF No. 42] finding that the Plaintiff did not have a clear understanding of the scope of the Defendant's Motion for Summary Judgment and should have an opportunity to respond to the Defendant's arguments and evidence raised in the reply brief. Therefore, the Court directed the parties to file supplemental briefing. The Plaintiff filed a Surreply [ECF No. 44] on January 9, 2015, and the Defendant filed a Response [ECF No. 45] on January 23, 2015. The motions are ripe for ruling.


Unless otherwise noted, the following material facts are undisputed. The Plaintiff began working for the Defendant in December 2003 and was promoted to conductor in May 2004. On March 21, 2009, the Plaintiff was working as a conductor/trainman in the Defendant's Elkhart (Indiana) Yard when he suffered an injury that is the basis of this litigation. The Plaintiff was part of the crew working the YBES15 assignment, which involved pulling cars from the west end of the classification tracks in the hump yard to the departure tracks for westbound trains. In particular, the Plaintiff's job was to couple rail cars as necessary in the classification tracks in preparation for the engineer to pull the cars to the departure tracks.

The classification yard, also known as the "hump yard" or the "bowl, " is a bowl-shaped yard with numerous tracks whereby individual rail cars can be placed, or "humped, " into the appropriate tracks in preparation for departure to their ultimate destination. A locomotive pulls a cut of cars up a lead track on a hill, or "hump, " at the east end of the yard. At the crest of the hill rail cars are manually uncoupled, allowing the car to roll down grade, controlled by a computeroperated system of hydraulic, pneumatic, and mechanical retarders and switches into various classification tracks on the west end of the yard. To release a rail car at the crest of the hump, an employee pulls a pin to unlock and open the knuckle on the front (west) end of the trailing car, allowing the lead car to separate and roll downhill into the yard. Thus, as a car is rolling down grade into the classification tracks, the lead knuckle on the front of the car is open and the trailing knuckle on the rear of the car is closed. Generally, cars humped into the classification tracks will automatically couple to the cars already in the tracks, as the open knuckle on the front end of the car entering the tracks engages the closed knuckle of the car already in the track.

The knuckle portion of the coupler on each end of a rail car extends out from the car by way of a drawbar, which can vary in length depending upon the overall length of the car. The drawbar is designed to pivot in its housing, allowing the knuckle end some lateral play to prevent moving cars from derailing on a curved track. A consequence of this lateral movement is that drawbars can become slewed or misaligned and pass by each other, thereby preventing cars from coupling. When this occurs, railroad employees must manually realign the drawbars so that the knuckle ends will engage each other and couple the rail cars.

Sometime between 10:00 AM and noon on March 21, 2009, the Plaintiff was walking along track 57 checking to ensure that all the cars were properly coupled when he came upon two cars that were butted up against each other and that had bypassed drawbars. The knuckles on both drawbars were closed. The Plaintiff radioed the engineer who then pulled the cars on the east end of the track back one-car length. Once three-step protection was enabled, a safety procedure to ensure the train does not move while an employee is between cars, the Plaintiff went between the cars to realign the drawbars in preparation for coupling. Starting with the car attached to the cut of cars in the classification track, the Plaintiff realigned the drawbar by placing his back against the drawbar, bending his knees with his hands behind him, grabbing the bottom of the drawbar, and stepping it back as he was trained. The Plaintiff then used the same procedure to realign the second drawbar on the car attached to the locomotive. Although the Plaintiff successfully realigned the second drawbar, he felt a pop and injured his back at the moment the second drawbar was placed in the proper position. With each drawbar, the Plaintiff opened the knuckle after realigning it to the proper position for coupling. After adjusting the drawbars and opening the knuckles, the Plaintiff radioed the engineer to bring the cars back together. Upon doing so, the cars coupled without any problem and the engineer pulled the train out of track 57.

After the injury, the Plaintiff experienced tingling and soreness in his back. He reported the injury two days later, on March 23, 2009.


A. Motion to Exclude

In response to the Defendant's summary judgment motion, the Plaintiff offers the report of Mr. Colon R. Fulk of Railex, Inc., a railroad operations consulting firm. Mr. Fulk's report quotes extensively from a University of Michigan ergonomics study, and the Defendant asks the Court to exclude the opinions of Mr. Fulk, the Plaintiff's expert, arguing that he is a train operations expert, not an ergonomics and biomechanics expert, and that his opinions based upon the ergonomics study are inadmissible pursuant to Federal Rules of Evidence 702 and 703.

1. Timeliness

As a preliminary matter, the Plaintiff asserts that the Defendant's motion to exclude the opinions of Mr. Fulk is untimely, but presents no argument or authority in support of this position. The Defendant argues that no deadline for objecting to expert testimony was set in this case, and that it could not have raised an objection to Mr. Fulk's opinion until the Plaintiff designated the opinion as evidence in opposition to the motion for summary judgment.

Rule 26 sets deadlines for the disclosure of expert testimony, Fed.R.Civ.P. 26(a)(2)(D) (requiring disclosure at least 90 days before the date set for trial, absent a stipulation or court order), and for pretrial disclosures, Fed.R.Civ.P. 26(a)(3)(B) (requiring disclosure at least 30 days before trial, unless the court orders otherwise, of witness lists, depositions, and identification of exhibits). Rule 26(a)(3)(B) further provides that objections to pretrial disclosures are due within 14 days unless the Court sets a different time. However, these deadlines relate to disclosure and not to the time period by which a party must file a motion to strike or exclude expert testimony. Pursuant to Local Rule 56-1(e), the Defendant filed a separate motion regarding the admissibility of Mr. Fulk's opinion.

The Court finds that the Plaintiff's argument that the motion in untimely is without merit. The Defendant filed its motion to exclude arguing that Mr. Fulk's opinion is inadmissible the same day it filed its timely reply to the Plaintiff's response in opposition of summary judgment, in which the Plaintiff designated Mr. Fulk's opinion into evidence. The Court finds, and the Plaintiff presents, no basis for which the motion to exclude could be considered untimely. For the purposes of summary judgment, the Court finds that the Defendant's motion disputing the admissibility of Mr. Fulk's opinions is timely.

2. Rule 702 and Daubert Standard

"The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, (1993)." Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Rule 702 charges trial judges with the responsibility of acting as "gatekeeper[s] with respect to testimony proffered under Rule 702 to ensure that the testimony is sufficiently reliable to qualify for admission." Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)). "The purpose of [the Daubert ] inquiry is to vet the proposed testimony under Rule 702's requirements that it be based on sufficient facts or data, ' use reliable principles and methods, ' and reliably appl[y] the principles and methods to the facts of the case.'" Lapsley v. Xtek, Inc., 689 F.3d 802, 804 (7th Cir. 2012) (quoting Fed.R.Evid. 702). In evaluating whether an expert's proposed testimony meets the Daubert standard, the Court is to "scrutinize the proposed expert witness testimony to determine if it has the same level of intellectual rigor that characterizes the practice of an expert in the relevant field' so as to be deemed reliable enough to present to a jury." Lapsley, 689 F.3d at 805 (quoting Kumho Tire, 526 U.S. at 152). Whether to admit expert testimony rests within the discretion of the district court. See Gen. Elec. v. Joiner, 522 U.S. 136, 142 (1997); Lapsley, 689 F.3d at 810 ("[W]e give the district court wide latitude in performing its gate-keeping function and determining both how to measure the reliability of expert testimony and whether the testimony itself is reliable.'") (quoting Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011)). "The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard" by a preponderance of the evidence. Lewis, 561 F.3d at 705; see also Fed.R.Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified."); Fed.R.Evid. 702 advisory committee note (2000 Amends.) ("[T]he admissibility of all expert testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence.").

District courts apply the Daubert framework described above using a three-part analysis. Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). First, the Court must determine whether the proposed witness is qualified as an expert by knowledge, skill, experience, training, or education. If so, the Court must then decide whether the reasoning or methodology underlying the expert's testimony is reliable. If these two requirements are met, the Court must assess whether the expert's proposed testimony will assist the trier of fact in ...

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