Martin v. National Railroad Passenger Corporation ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
)
SHAWN MARTIN, )
Plaintiff, )
)
v. )
) C.A. NO. N19C-03-038 DJB
NATIONAL RAILROAD )
PASSENGER CORPORATION, )
d/b/a AMTRAK, )
Defendant. )
Submitted: April 28, 2023
Decided: June 15, 2023
ORDER
Upon Defendant’s Motion in Limine – DENIED.
This 15th day of June, 2023, having considered Defendant’s Motion in
Limine/Daubert Challenge, the Plaintiff’s Response, oral arguments of counsel and
the record in this matter; it appears to the Court that:
1. Plaintiff Shawn Martin (hereinafter “Plaintiff”) filed suit alleging
negligence against his employer, Defendant Nationwide Railroad Passenger
Corporation, d/b/a Amtrak, (hereinafter “Defendant”) pursuant to the Federal
Employers’ Liability Act (hereinafter “FELA”) alleging various claims of
negligence, including the failure to provide its Police Officer employees tasers for
carrying out their official duties.
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2. This Court previously ruled that Plaintiff must present expert testimony
in order to make out a claim of negligence for such a failure.1 In doing so, the Court
gave Plaintiff additional time to obtain an expert. Following that allowance, Plaintiff
identified Anthony Grano as their expert, and provided his curriculum vitae and letter
report dated January 5, 2023, to Defendant. Thereafter, Defendant filed the instant
motion.
3. Defendant, while couching this motion as one in limine, argues that
Plaintiff’s expert fails under the Daubert standard for: 1) not being a qualified expert;
2) providing unreliable opinions and 3) failing to provide an opinion that can assist
the trier of fact. Plaintiff retorts that his expert is sufficiently qualified and the
testimony is relevant and will assist the jury in their determination.
4. First and foremost, the Court notes that this motion is not a motion in
limine, but a Daubert motion. The deadline for Daubert motions have passed,
however, because Plaintiff was afforded the opportunity to obtain an expert outside
of the dates prescribed by the Trial Scheduling Order, the Court will allow the motion
to proceed at this time on its merits.
5. Delaware Rule of Evidence 702 (“D.R.E.”) dictates the admissibility of
1
Shawn Martin v. Nationwide Railroad Passenger Corporation d/b/a Amtrak,
N19C-03-038 DJB Docket Item 72.
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expert testimony.2 D.R.E. 702 specifically provides that:
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 witness is qualified as an expert
by knowledge, skill, experience, training, or education; (b) the
evidence is relevant; (c) the expert’s opinion is based upon
information reasonably relied upon by experts in the particular
field; (d) the expert testimony will assist the trier of fact to
understand the evidence or to determine a fact in issue; and (e) the
expert testimony will not create unfair prejudice or mislead the
jury.3
6. The trial court acts as the gatekeeper for proffered expert testimony and
before allowing such testimony, must conclude that the expert opinion testimony is
both (i) relevant and (ii) reliable.4 Expert testimony is relevant if “it would assist the
fact finder in understanding the evidence or determining a fact in issue.”5 “Expert
testimony is reliable if it is premised on technical or specialized knowledge, which
requires the testimony to be grounded in reliable methods and procedures and
supported by appropriate validation—i.e., good grounds, based on what is known.”6
2
Smack-Dixon v. Wal-Mart, Inc., 2021 WL 3012056, at *2 (Del. Super. Ct. July 16,
2021).
3
D.R.E. 702.
4
Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1269 (Del. 2013)
(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)).
5
Marydale Preservation Assocs., LLC v. Leon M. Weiner & Assocs., Inc., 2022 WL
4394375, at *2 (Del. Super. Ct. Sept. 23, 2022) (internal quotation marks and
citations omitted).
6
Id.-3-
7. The proponent of the expert evidence bears the burden of establishing
its admissibility by a preponderance of the evidence.7 “There is a ‘strong preference’
for admitting expert opinions ‘when they will assist the trier of fact in understanding
the relevant facts or the evidence.’”8
QUALIFICATIONS
8. Grano is the co-founder and executive director of a training provider that
instructs law enforcement agencies, military units, and security companies in combat
training, arrest and control methods, and other defensive tactics, which includes the
use of tasers.9 Per Grano, both the Department of Defense (“DoD”) and the Inter-
Service Non-Lethal Individual Weapons Instructor Course (“INWIC”) have
recognized him as a subject matter expert on the use of tasers.10 Grano has been
providing training to law enforcement and military officers for at least twenty-five
years.11 As a result, Grano is a qualified expert regarding the appropriateness of the
use of tasers and when and whether or not police officers should be so equipped with
this device. Any questions regarding the specific extent of Grano’s experience with
7
Henlopen Hotel, Inc. v. United Nat’l Ins. Co., 2020 WL 233333, at *2 (Del. Super.
Ct. Jan. 10, 2020) (citing Tumlinson, 81 A.3d at 1270).
8
Marydale, 2022 WL 4394375, at *2 (quoting Norman v. All About Women, P.A.,
193 A.3d 726, 730 (Del. 2018)).
9
Pl.’s Opp’n Br., Ex. E (hereinafter “Grano’s Expert Report”), Feb. 20, 2023 (D.I.
85); id., Ex. F.
10
Pl.’s Opp’n Br., Ex. G (D.I. 85).
11
Id., Ex. F.
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taser instruction goes to the weight of his testimony, not its admissibility.12
RELIABILITY
9. The Unites States Supreme Court in Daubert identified a list of non-
exclusive factors for trial courts to consider in determining the reliability of expert
opinion testimony:
(1) Whether a theory or technique has been tested;
(2) Whether it has been subject to peer review and publication;
(3) Whether a technique had a high known or potential rate of
error and whether there are standards controlling its operation;
and
(4) Whether the theory or technique enjoys general acceptance
within the relevant scientific community.13
10. Given that many fields of expertise are not subject to peer review and
publication, Delaware courts instruct against the rigid application of Daubert factors
to determine reliability of expert evidence.14 As a result, trial courts possess “broad
12
See Rodriguez v. State, 30 A.3d 764, 769-70 (Del. 2011) (“Like expert witnesses
generally, an analyst’s lack of proper training or deficiency in judgment may be
disclosed in cross-examination. By probing Hegman on his particular experience in
tire track and shoeprint analysis, defense counsel challenged his credibility before the
jury and the weight to be given the impression evidence.” (internal citations
omitted)).
13
Bowen v. E.I.DuPont de Nemours & Co., 906 A.2d 787, 794 (Del. 2006) (citing
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-94 (1993)).
14
Smack-Dixon, 2021 WL 3012056, at *5; M & G Polymers USA, LLC v. Carestream
Health, Inc., 2009 WL 3535466, at *6 (Del. Super. Ct. Aug. 5, 2009).
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latitude” in making such determinations.15 “The factors will be applied flexibly
where a proffered witness’s area of expertise is not expected to carry the traditional
indicia of scientific acceptance; however, reliability remains a prerequisite to
admissibility of all expert opinions, whether they are based upon scientific, technical,
or other specialized knowledge.”16
11. Grano’s opinion on whether use of a taser would have prevented
Plaintiff’s injuries is non-scientific. To determine reliability in the non-scientific
opinion context, Delaware courts have looked to whether the “opinions have a
reliable basis in [the expert’s] knowledge and experience” and whether the “report
explains how that knowledge and experience informed his opinions regarding the
case.”17
12. In developing his report, Grano relied upon the complaint, video
evidence, and multiple depositions taken in the case.18 No other supportive materials
were referenced or provided in the report.19 Though the report does not explicitly
15
Perry v. Berkley, 996 A.2d 1262, 1267 (Del. 2010) (citing Gen Motors Corp. v.
Grenier, 981 A.2d 531, 536 (Del. 2009)).
16
M & G Polymers, 2009 WL 3535466, at *6 (internal quotation marks and
citations omitted).
17
Id. at *11; see also State v. Jones, 2003 WL 21519842, at *3 (Del. Super. Ct. July
2, 2013) (“The Court held that handwriting analysis testimony would assist the jury
to further understand the evidence and found the witness to be a skilled person by
training and experience.” (internal quotation marks omitted)).
18
Pl.’s Opp’n Br., Ex. E (D.I. No. 85).
19
See generally id.-6-
detail his source of knowledge, Grano presumably relied upon his knowledge and
experience in the use of tasers and defensive tactics in reaching his opinion. Grano
explains that a taser’s effect, rendering a subject immobile for a limited period of
time, is an “immeasurable asset” to law enforcement and “results in less officer
injuries[.]”20 Taken together, Grano proffers a reliable basis of knowledge and
experience and explained how his knowledge of tasers informed his ultimate
opinion.21
TESTIMONY WILL ASSIST THE JURY
13. Amtrak further contends that Grano’s expert testimony will not assist
the jury because it has no bearing on “whether Amtrak breached any applicable
standard of care in relation to the issuance of Tasers.”22 As a result, Amtrak asserts
that Grano’s opinion will confuse the issue and mislead the jury. Plaintiff asserts that
under FELA, the jury must decide whether Amtrak failed to provide a safe place to
work for its employees and that Grano’s opinion is relevant to the jury’s
determination of a safe workplace.
20
Id.21
See e.g., M & G Polymers, 2009 WL 3535466, at *10-11; Jones, 2003 WL
21519842, at *3; see also Blessing v. Williams, 2022 WL 4182534, at *16 (M.D. Fla.
Sept. 13, 2022) (“But the most important test of an experience-qualified non-
scientific expert’s reliability is that the expert must be able to explain how [his]
experience leads to the conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied to the facts.” (internal
quotation marks and citations omitted).
22
Amtrak’s Mot. in Limine ¶ 35, Jan. 23, 2023 (D.I. 75).
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14. Given the context, subject matter and his qualifications, Grano’s opinion
will assist the jury. Liability under FELA stems from the railroad employer’s duty
to provide a reasonably safe workplace.23 Accordingly, Grano’s opinion will assist
the jury in determining whether Amtrak’s decision not to equip officers with tasers
breached its duty to provide a safe working environment.
15. As a result, the Motion to Exclude Grano’s Testimony is
DENIED.
IT SO ORDERED this 15TH day of June, 2023.
_____________________________
Danielle J. Brennan, Judge
Cc: All parties via Lexis File&Serve
23
Rivera v. Union Pacific R. Co., 378 F.3d 502, 507 (5th Cir. 2004) (“[FELA]
authorizes an injured railroad employee to recover damages from his employer for
injury or death resulting in whole or in part from the [railroad’s] negligence. The
ultimate fact question is whether the railroad exercised reasonable care in creating a
reasonably safe working environment.” (internal quotation marks and citations
omitted)); see also Tufariello v. Long Island R. Co., 458 F.3d 80, 91 (2nd Cir. 2006)
(finding railroad employer’s refusal to provide hearing protection to employees
sufficient to submit case to jury).
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