130 F. Supp. 3d 654
N.D.N.Y.2015Background
- Personal injury action arising from crossing railroad tracks in Kingston, NY; plaintiff M.B. (13) struck by CSX train; two causes of action: negligence and loss of parental services; case removed to NDNY on diversity grounds; extensive discovery with sanctions against plaintiffs; plaintiffs’ liability expert Nicholas Bellizzi retained; defendant moved to preclude Bellizzi and for summary judgment; court granted both motions; ultimately barred Bellizzi’s opinions and granted summary judgment for defendant.
- Facts: accident occurred Nov 27, 2010, ~2:30 p.m.; train speed about 38 mph; warning horn/bell sounded for ~2 minutes 20 seconds prior to impact; M.B. attempted to beat the train, tripped, and was struck; M.B. had prior awareness that trains use the tracks there; Bellizzi opined on train deceleration and PRT; defendant’s expert Foster Peterson offered competing timings and braking analysis; Bellizzi was deposed May 2014; sanctions precede filings.
- Procedural posture: motion to preclude Bellizzi granted; motion for summary judgment granted; both parties’ briefing regarding Daubert standards and NY law discussed; court analyzed admissibility under Rule 702 and Daubert/Kumho; court noted plaintiffs failed to oppose certain arguments adequately and used Rule 7.1 obligations.
- Expert evidence: Bellizzi’s opinions challenged for unreliable methodology (average deceleration, PRT, ability to extricate in 0.27 seconds); Peterson’s testimony offered as counterpoint; court found Bellizzi’s average deceleration rate unreliable due to ignoring brake physics, train length/weight, and delay after brake application; PRT opinion rejected for lack of foundation/study; extrication timing opinion rejected for lack of method/qualification.
- Result: Bellizzi’s testimony excluded; defendant’s summary judgment motion granted; claims involving fencing/warning signs and plaintiff’s conduct found non-proximate or superseded by MB’s reckless conduct; case dismissed with judgment for CSX.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Bellizzi’s average deceleration opinion | Bellizzi based on experience; reasonable under Daubert; sufficient reliability | Opinion unreliable; ignores brake physics and train length; lacks data to support methodology | Excluded; unreliable methodology; not admissible evidence |
| Admissibility of Bellizzi’s train operator perception time (PRT) opinion | PRT based on experience; relevant to causation | Appellate court rejection of 1.0–1.2 sec PRT; not sufficiently reliable or supported | Excluded; lacks reliable foundation; not admissible |
| Bellizzi’s opinion that MB could have extricated himself in 0.27 sec | Physical mechanics show possible escape with extra 0.27 sec | Lacks scientific basis; lacks methodology; expert not qualified in human factors | Excluded; lacking methodology and qualifications; not admissible |
| Whether failure to fence or post warning signs proximate cause | CSX duty to fence/warn; lack of fencing/Signs could be proximate cause | No statutory duty; MB knew tracks dangerous; no causal link shown by record evidence | No genuine issue of material fact; fencing/warning not proximate cause; not required by NY law |
| Proximate cause given MB’s reckless conduct; open-run rule | CSX breached duty; MB’s crossing was not entirely his fault | MB knowingly crossed; open-run rule does not impose duty to stop; MB sole proximate cause | MB’s recklessness sole proximate cause; no liability for CSX; summary judgment for defendant |
Key Cases Cited
- Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256 (2d Cir. 2002) (gatekeeping role under Rule 702; reliability and relevance standards)
- Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (S. Ct. 1993) (reliability and relevance in expert testimony; flexible standards)
- Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (S. Ct. 1999) (Daubert applies to all expert testimony in specialized fields; flexible)
- Joiner v. Gen. Elec. Co., 522 U.S. 136 (S. Ct. 1997) (court may exclude expert testimony if data does not support conclusions)
- Dibble v. NYCTA, 76 A.D.3d 272 (N.Y. App. Div. 1st Dept. 2010) (NY appellate ruling rejecting one-second train operator reaction time as unsupported foundation)
- Mirjah v. NYCTA, 48 A.D.3d 764 (N.Y. App. Div. 2d Dept. 2008) (NY appellate ruling on reliability of PRT opinions in railroad collisions)