# Bardo v. Norfolk Southern Railway Company

> District Court, M.D. Pennsylvania · May 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10408750

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

FRANCIS BARDO, :

Plaintiff : CIVIL ACTION NO. 4:17-942

v. : (JUDGE MANNION)

NORFOLK SOUTHERN :
RAILWAY COMPANY,
:
Defendant
:

MEMORANDUM

Pending before the court is defendant’s motion for summary judgment
pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1, M.D. Pa. (Doc. 14). For
the reasons stated below, the court will GRANT the motion.

I. PROCEDURAL HISTORY
Plaintiff commenced this litigation by filing a complaint on May 30,
2017. (Doc. 1). Upon completion of discovery, defendant filed a motion for
summary judgment and brief in support on January 11, 2019. (Doc. 14, Doc.
15). On April 8, 2019, plaintiff sought leave to file a response to defendant’s
motion for summary judgment nunc pro tunc. (Doc. 16). On the same day,
plaintiff filed a brief in opposition to defendant’s motion for summary
judgment. (Doc. 17). Attached to plaintiff’s brief in opposition was the report
of Dr. Eckardt Johanning who plaintiff argued ought to be admitted to testify
as an expert in the case.

This court granted plaintiff’s motion to file a response to defendant’s
motion for summary judgment nunc pro tunc and reopened discovery with
respect to the report of Dr. Johanning only. (Doc. 20). Under the order,

defendant was permitted to file a reply brief to their motion for summary
judgment and plaintiff was permitted to file a sur-reply. On February 14,
2020, defendant filed a reply brief to their motion for summary judgment
objecting to the report of Dr. Johanning and again arguing that plaintiff has

failed to provide admissible expert testimony and has failed to prove the
necessary element of causation. (Doc. 25). Plaintiff has not filed a sur-reply
and the time to do so has expired. Defendant’s motion for summary judgment

is now ripe for disposition.

II. FACTUAL BACKGROUND
Plaintiff’s complaint is brought under the Federal Employers’ Liability

Act (“FELA”), 45 U.S.C. §§51-60. Plaintiff seeks compensation for
defendant’s negligence and failure to provide a safe work environment which
he alleges led to the “aggravation of existing conditions and cumulative micro
traumas disorders/repetitive stress injuries to his spine, neck, muscles and
nerves.” (Doc. 1, p. 3).

In support of his claim, plaintiff offers the report of Dr. Eckardt
Johanning and contends that he ought to be qualified to testify as an expert
in this case. Defendant states in its supplemental statement of material facts

that “Dr. Johanning is a board-certified occupational medical doctor, who has
testified on behalf of numerous FELA plaintiffs over the years, with a focus
on testifying and offering opinions in cases involving allegations of whole
body vibration exposure in the locomotive cab setting, and the vast majority

of his published research focuses on purported vibration exposure in a
locomotive cab setting.” (Doc. 26, p. 1-2). Defendant deposed Dr. Johanning
on January 15, 2020. (Doc. 26, p. 2). Defendant objects to the admissibility

of Dr. Johanning’s testimony on the following grounds: (1) he is not qualified
to testify as an expert in the case; (2) his opinions are not the result of reliable
principles or methods; and (3) he has not applied reliable principles and
methods to the facts of the case. (Doc. 26). Defendant’s argument continues

that because Dr. Johanning is not qualified to testify as an expert in this case,
plaintiff has failed to present admissible expert evidence that speaks to
medical causation and thus has failed to prove that defendant’s negligence

caused plaintiff’s injuries, a required element of a FELA claim.
III. LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, the discovery
[including, depositions, answers to interrogatories, and admissions on file]
and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901
F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury

could find for the non-moving party and is material if it will affect the outcome
of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F. Supp.

836, 838 (M.D. Pa. 1995). At the summary judgment stage, “the judge’s
function is not himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247

(3d Cir. 2004) (a court may not weigh the evidence or make credibility
determinations). Rather, the court must consider all evidence and inferences
drawn therefrom in the light most favorable to the non-moving party. Andreoli

v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
To prevail on summary judgment, the moving party must affirmatively
identify those portions of the record which demonstrate the absence of a

genuine issue of material fact. Celotex Corp., 477 U.S. at 323-24. The
moving party can discharge the burden by showing that “on all the essential
elements of its case on which it bears the burden of proof at trial, no

reasonable jury could find for the non-moving party.” In re Bressman, 327
F.3d 229, 238 (3d Cir. 2003); see also Celotex Corp., 477 U.S. at 325. If the
moving party meets this initial burden, the non-moving party “must do more
than simply show that there is some metaphysical doubt as to material facts,”

but must show sufficient evidence to support a jury verdict in its favor. Boyle
v. County of Allegheny,139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However,

if the non-moving party “fails to make a showing sufficient to establish the
existence of an element essential to [the non-movant’s] case, and on which
[the non-movant] will bear the burden of proof at trial,” Rule 56 mandates the
entry of summary judgment because such a failure “necessarily renders all

other facts immaterial.” Celotex Corp., 477 U.S. at 322-23; Jakimas v.
Hoffman-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
IV. DISCUSSION
Defendant raises two arguments in their motion for summary judgment

and they renew one of those arguments in their reply brief.1 Defendant’s
main argument in their motion for summary judgment and reply brief is that
plaintiff has not produced admissible expert evidence that defendant’s

negligence caused his alleged injuries and because of this has failed to plead
a required element for a cognizable FELA claim. However, plaintiff contends
that Dr. Johanning ought to be permitted to testify as an expert in this case
and can speak to medical causation. Defendant objects to the admissibility

of Dr. Johanning’s testimony and presents this argument in its reply brief.
Plaintiff has not responded to defendant’s reply brief or supplemental
statement of material facts and, pursuant to Local Rule 56.1, all facts in

defendant’s supplemental statement of material facts are deemed
uncontested and admitted.

1 Defendant argues that it is not responsible for workplace exposures
or negligence that occurred prior to plaintiff’s employment with defendant
which commenced on June 1, 1999. Plaintiff does not contest this argument
and consents to granting summary judgment in favor of defendant with
respect to this argument.
a. Plaintiff has Failed to Produce Admissible Expert
Testimony and as a Result has Failed to Prove the
Element of Causation Required for a Cognizable Claim
Under FELA.

FELA states that “[e]very 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....” 45
U.S.C. §51. FELA is not a strict liability statute; “it is a negligence statute with
an explicitly-stated relaxed standard of causation.” Monheim v. Union R. Co.,
996 F.Supp.2d 354, 361 (W.D.Pa. 2014); see Consolidated Rail Corp. v.

Gottshall, 512 U.S. 532, 542-543 (1994).
To present a prima facie case under FELA, the employee-plaintiff must
show that: (1) he was injured within the scope of his employment; (2) his
employment was in furtherance of the railroad’s interstate transportation

business; (3) the railroad was negligent; and (4) that negligence played some
part in causing the injury for which he seeks compensation. Monheim, 996
F.Supp.2d at 361; see also Van Gorder v. Grand Trunk W.R.R., 509 F.3d

265, 269 (6th Cir. 2007). At the summary judgment stage, “the test of a jury
case is simply whether the proofs justify with reason the conclusion that
employer negligence played any part, even the slightest, in producing the
injury or death for which damages are sought.” Monheim, F.Supp.2d at 361
(citing CSX Transp., Inc. v. McBride, 564 U.S. 685, 692 (2011)).

The Third Circuit has clarified that to defeat a motion for summary
judgment a plaintiff need only present a minimum amount of evidence. Hines
v. Consol. Rail Corp., 926 F.2d 262, 268 (3d Cir. 1991) (citing Pehowic v.

Erie Lackawanna R.R., 430 F.2d 697, 699-700 (3d Cir. 1970)). Further, “[a]
trial court is justified in withdrawing ... issue[s] from the jury’s consideration
only in those extremely rare instances where there is a zero probability either
of employer negligence or that any such negligence contributed to the injury

of an employee.” Pehowic, 430 F.2d at 699-700. Although the causation
standard is lessened under FELA, a plaintiff “must nevertheless demonstrate
the common law elements of negligence: i.e., duty, breach, foreseeability,

and causation.” Monheim, 996 F.Supp.2d at 361; see Illinois Cent. R. Co. v.
Skaggs, 240 U.S. 66 (1916).
The standard of causation under FELA and the admissibility of expert
testimony are separate issues. Wicker v. Consolidated Rail Corp., 371

F.Supp.2d 702, 713 (W.D.Pa. 2005); see In re Paoli Railroad Yard PCB
Litigation, 2000 WL 274262, *2 (E.D.Pa. 2000); see also Claar v. Burlington
N. R.R., 29 F.3d 499, 504 (9th Cir. 1994). This means that the standard for
the admissibility of expert testimony is unaffected by FELA’s explicitly stated
lower causation standard. Id.

In considering defendant’s motion in this case, this court finds the Ninth
Circuit’s approach in Claar illustrative of the correct way to analyze the
argument that a plaintiff has failed to present admissible expert testimony

and thus has failed to prove the necessary element of causation. In Claar,
the Ninth Circuit affirmed the district court’s finding that plaintiff’s expert
affidavits were inadmissible because they failed to explain the expert’s
reasoning and methods. 29 F.3d at 501-502. Without the expert’s affidavits,

plaintiffs could not demonstrate a causal connection between defendant’s
negligence and plaintiffs’ injuries and summary judgment was properly
granted in favor of the defendants. Id. at 504-505. Claar is directly analogous

to defendant’s argument in this case and this court will follow Claar’s
methodology and analyze Dr. Johanning’s report under the typical standard
of admissibility for expert testimony.
The standard of admissibility for expert testimony is governed by the

Federal Rules of Evidence, specifically Rule 702, and the United States
Supreme Court’s decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993). Rule 702 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 or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has
reliably applied the principles and methods to the
facts of the case.

Fed.R.Evid. 702. The Third Circuit has interpreted Rule 702, as analyzed in
Daubert and its progeny, to include “three distinct substantive restrictions on
the admission of expert testimony: qualifications, reliability and fit.” Burke v.
TransAm Trucking, Inc., 617 F.Supp.2d 327, 330-331 (M.D.Pa. 2009) (citing
United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001)). The proponent
of the expert “bears the burden of establishing the reliability and admissibility
of the expert’s testimony by a preponderance of the evidence.” Burke, 617
F.Supp.2d at 331. Rule 702 has a liberal policy favoring admissibility. Pineda
v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008).

1. Qualifications
In order for a witness to be qualified as an expert, “he must first be
qualified by virtue of specialized expertise.” Elcock v. Kmart Corp., 233 F.3d

734, 741 (3d Cir. 2000); see also In re Paoli R.R. Yard PCB Litigation, 35
F.3d 717, 741 (3d. Cir. 1994). The standard to be qualified as an expert was
articulated by the Third Circuit as follows:

Rule 702 requires the witness to have “specialized
knowledge” regarding the area of testimony. The
basis of this specialized knowledge “can be practical
experience as well as academic training and
credentials.” We have interpreted the specialized
knowledge requirement liberally, and have stated
that this policy of liberal admissibility of expert
testimony “extends to the substantive as well as the
formal qualification of experts.” However, “at a
minimum, a proffered expert witness ... must possess
skill or knowledge greater than the average
layman....”

Elcock, 233 F.3d at 741 (citing Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir.
1998) (citations omitted)).
Defendant does not object to Dr. Johanning’s education, training and
professional experience. They concede that Dr. Johanning is a board-
certified occupational medical doctor and that his education and training
speak for itself. Dr. Johanning’s education, training, and experience certainly
show that he possesses skill greater than the average layman. Given Dr.
Johanning’s education, training and experience, and Rule 702’s liberal
interpretation of the specialized knowledge requirement, this court finds that
Dr. Johanning satisfies the qualifications threshold of Rule 702.
2. Reliability

The reliability threshold in Rule 702 “requires expert testimony to be
‘based on the methods and procedure of science, not on subjective belief
and unsupported speculation.’” UGI Sunbury LLC v. A Permanent Easement
for 1.7575 Acres, 949 F.3d 825, 833-834 (3d. Cir. February 11, 2020) (citing

Karlo v. Pittsburg Glass Works, LLC 849 F.3d 61, 80-81 (3d Cir. 2017)
(quoting In re TMI Litigation 193 F.3d 613, 703-704 (3d. Cir. 1999)). “Courts
look for rigor, not mere ‘haphazard, intuitive inquiry.’” Id. (citing Oddi v. Ford

Motor Co., 234 F.3d 136, 156 (3d. Cir. 2000)). The court is required to
determine whether the expert’s testimony is supported by “good grounds.”
Karlo, 849 F.3d at 81.
Both the Supreme Court in Daubert and the Third Circuit have

explained that many factors ought to be considered when determining
whether an expert’s testimony is based on “good grounds.” Id. These factors
include:

(1) whether a method consists of a testable
hypothesis; (2) whether the method has been subject
to peer review; (3) the known or potential rate of
error; (4) the existence and maintenance of
standards controlling the technique’s operation; (5)
whether the method is generally accepted; (6) the
relationship of the technique to methods which have
been established to be reliable; (7) the qualifications
of the expert witness testifying based on the
methodology; and (8) the non-judicial uses to which
the method has been put.

UGI Sunbury LLC, 949 F.3d at 834 (citing Pineda F.3d at 247-248 (citing
Paoli, 35 F.3d at 742 n. 8). No one factor is dispositive, but the court is
required to analyze these factors to some extent. UGI Sunbury LLC, 949
F.3d at 834.
Dr. Johanning is a board-certified occupational medical doctor. There
is no question regarding Dr. Johanning’s education and training; however,
there is a question regarding the data that Dr. Johanning cites in his report.
In Dr. Johanning’s report he states that “[a]s a maintenance of way trackman
and machine operator, [plaintiff] was typically exposed to the well-recognized

risk factors for occupational neck and back disorders and injuries.” (Doc. 17,
Attachment 4, p. 7). These well-recognized risk factors include whole-body
vibrations and jolts during plaintiff’s work duties, prolonged sitting, awkward
body posture, and forceful repetitive tasks. (Doc. 17, Attachment 4, p. 7). Dr.

Johanning concludes that it is his professional opinion that plaintiff’s “injuries
were more likely than not caused in whole or in part by excessive
occupational mechanical loading, such as whole-body vibration of the spine

combined with other well recognized ergonomic stressors cited.” (Doc. 17,
Attachment 4, p. 8). Dr. Johanning states that he “considered the results of
past numerous inspections and vibration/shock measurements of a variety

of US locomotives and maintenance of way equipment during routine
operations documented in scientific articles and provided in detail to the
railroad corporations.” (Doc. 17, Attachment 4, pp. 7-8).

Defendant convincingly points to several weaknesses in Dr.
Johanning’s proposed testimony. As the proponent of Dr. Johanning’s
testimony, plaintiff has the burden of “establishing the reliability and
admissibility of the expert’s testimony by a preponderance of the evidence.”

Burke, 617 F.Supp.2d at 331. Plaintiff has failed to do so. Simply supplying
the report of Dr. Johanning is not enough for plaintiff to meet his burden.
Plaintiff has failed to respond to any of defendant’s arguments and, upon

review, the court determines that Dr. Johanning’s conclusions are not based
on “good grounds.”
In defendant’s supplemental statement of material facts, they highlight
that maintenance of way workers do the distinct job of installing, repairing,

and maintaining railroad tracks and rail bed - meaning they work on the
railroad track itself, as compared to train and engine workers, such as
engineers and conductors, who ride on trains and operate locomotives. Dr.

Johanning’s reference list contains sixty-four references and, of these
references, less than five are focused specifically on maintenance of way
workers. Of these articles, none of them focused on injuries of neck

specifically. In his deposition, Dr. Johanning admitted that he is not aware of
any scientific studies that conclude that vibration and shock exposure from
maintenance of way equipment causes degenerative neck conditions on

maintenance of way workers. Dr. Johanning also concedes that he based
his conclusion on discussions with plaintiff, observations, and experience.
While Dr. Johanning makes mention of observations, he concedes that he
did not observe any equipment owned by defendant. (Doc. 26, p. 6).

Dr. Johanning attached two articles to his report, Whole-Body
Vibration-Related Disorders in Occupational Medicine—An International
Comparison and Vibration and Shock Exposure of Maintenance-of-Way

Vehicles in the Railroad Industry. Neither of these articles support Dr.
Johanning’s conclusion that the well-recognized risk factors and
maintenance of way equipment caused or contributed to plaintiff’s
degenerative neck conditions because neither focuses specifically on neck

positions or injuries of the neck.
It is possible that Dr. Johanning’s hypothesis - that these well-
recognized risk factors and maintenance of way equipment may cause

degenerative neck conditions in maintenance of way workers - is testable,
but he has not tested such a hypothesis. Again, he admitted that he is not
aware of any scientific study that concluded that vibration and shock

exposure from maintenance of way equipment causes degenerative neck
conditions in operators. In addition, Dr. Johanning notes that some of his
conclusions are based on conversations with plaintiff, which are subjective,

not scientific. It is impossible that Dr. Johanning’s hypothesis is subject to
peer review because no study with such a hypothesis has been conducted.
The other factors established by Daubert and its progeny are inapplicable
because of Dr. Johanning’s failure to point to any scientific study that

supports his specific conclusion. Dr. Johanning’s proposed testimony is
based on speculation and jumps in logic that are unsupported by any
scientific study. As a result, the court concludes that Dr. Johanning’s

proposed testimony does not meet the reliability threshold.

3. Fit
In determining whether an expert’s testimony “fits” the proceeding, the

court asks whether “it will help the trier of fact to understand the evidence or
to determine a fact in issue.” Id. at 835 (citing Fed.R.Evid. 702(a)). “Fit is not
always obvious, and scientific validity for one purpose is not necessarily

scientific validity for other, unrelated purposes.” Daubert, 509 U.S. at 591.
“[E]ven if an expert’s proposed testimony constitutes scientific knowledge,
his or her testimony will be excluded if it is not scientific knowledge for

purposes of the case.” Id. (citing Paoli, 35 F.3d at 743).
As mentioned above, Dr. Johanning’s proposed testimony does not
meet the threshold of reliability because his conclusion is not based on good

grounds. This court also concludes that Dr. Johanning’s proposed testimony
does not meet the fit threshold because, even though he may be able to
speak about injuries caused by whole body vibrations, he cannot speak
specifically the injuries alleged by plaintiff or their causes.

Reiterating a point made in the above section, Dr. Johanning does not
identify any scientific study that focuses on degenerative neck conditions in
maintenance of way workers. Dr. Johanning testified at his deposition that

he did not quantify plaintiff’s exposure to awkward body postures of the neck.
(Doc. 26, p. 5). He also testified that there are standard measurements that
can be taken, but he did not do any of these measurements with plaintiff.
(Doc. 26, p. 5). Further, Dr. Johanning acknowledged that in previous cases

he typically performed a study of whole body vibration occupational exposure
- which included taking into account background information about the
history of vibration research and his own prior involvement in locomotive

studies - but, he did not perform such a study in this case. (Doc. 26, p. 6).
Further, Dr. Johanning did not conduct any examination of equipment
owned by defendant or that plaintiff used during his employment. (Doc. 26,

p.6). Specifically, in his report Dr. Johanning took into account that the Mark
III Tamper that plaintiff used while employed by defendant did not have a
vibration damping seat without ever seeing the Tamper. (Doc. 26, p. 5-6).

Dr. Johanning took information from discussions with plaintiff without
conducting any observations, tests, or measurements to support plaintiff’s
claims. While Dr. Johanning may have general scientific knowledge about
injuries sustained by maintenance of way workers and their causes, he has

not applied this general knowledge to the facts of this case and accordingly
his proposed testimony does not “fit” this case.
Again, as the proponent of Dr. Johanning’s testimony, plaintiff has the

burden “of establishing the reliability and admissibility of the expert’s
testimony by a preponderance of the evidence.” Burke 617 F.Supp.2d at 331.
Plaintiff has not met this burden and this court concludes that Dr. Johanning’s
proposed testimony is inadmissible. Because plaintiff has failed to produce

admissible expert testimony that can speak to medical causation, he has
failed to prove the necessary element of causation for a cognizable FELA
claim. Plaintiff’s failure to prove causation, a necessary element, renders all
other facts immaterial and Rule 56 mandates the entry of summary judgment
in favor of the defendant.

V. CONCLUSION
For the reasons stated above, defendant’s motion for summary

judgment will be GRANTED. An appropriate order shall follow.

s/ Malachy E. Mannion
MALACHY E. MANNION United
States District Judge

DATE: May 11, 2020
17-942-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408750. Public record. Not legal advice.