N. Hooks v. SEPTA ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicole Hooks, :
:
v. : No. 946 C.D. 2016
: ARGUED: February 7, 2017
Southeastern Pennsylvania :
Transportation Authority, :
Appellant :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE HEARTHWAY FILED: August 31, 2017
The Southeastern Pennsylvania Transportation Authority (SEPTA)
appeals from the April 26, 2016 order of the Court of Common Pleas of
Philadelphia County (trial court), denying SEPTA’s post-trial motions seeking a
new trial. SEPTA’s appeal is based on a challenge to the admissibility of
testimony by an expert witness on behalf of Nicole Hooks. Discerning no abuse of
discretion, we affirm.
Hooks was working as an assistant conductor on SEPTA’s
Wilmington train line during the early morning hours of July 5, 2011, when she
was struck in the head and injured by an unruly passenger. Hooks brought suit
against SEPTA for negligence.1 At trial, Hooks called George Frazier as an expert
witness on transportation safety and security.
Frazier is a security consultant for the transportation industry. The
trial court described Frazier’s qualifications as follows:
Captain Frazier has spent twenty-four (24) years working
in transportation security for the AMTRAK Police
Department, including ten (10) years as AMTRAK’s
Chief of Police. . . He has approximately two thousand
(2000) hours of training including specific training in
areas such as railroad operations, railroad safety,
management of incidents, criminal investigations, and
records management. . . He further testified that he had
specific independent knowledge and experience with the
Wilmington line from his work with AMTRAK and his
later work as Director of Public Safety for New Castle
County, Delaware. . .
(Trial Court Opinion, 8/11/16, at 4) (citations omitted). SEPTA did not object to
Frazier’s qualification as an expert.
However, SEPTA did object to Frazier’s testimony insofar as it was
based on six interviews of SEPTA conductors. The conductors were referred to
Frazier by Hooks’ counsel. The interviews were not transcribed or documented.
The interviewees were not called as witnesses for Hooks at trial. Outside the
presence of the jury, the trial court conducted a hearing pursuant to Pa.R.E. 104 to
1
The Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60, authorizes railroad workers
to sue employers for negligence.
2
determine whether Frazier’s expert testimony, based at least in part on these six
interviews, was admissible.
At that hearing, Frazier testified that in this case he followed the
methodology typically used by experts in his field of expertise. He acquired and
reviewed the available pleadings and discovery. (Notes of Testimony (N.T.),
12/15/16, at 100-01.) He then conducted interviews “just [to] try to get to the
bottom line on what had happened in terms of that particular incident and to form
an opinion on what the circumstances were that surrounded it.” (N.T., 12/15/16, at
101.) After counsel for Hooks and SEPTA had questioned Frazier, the trial court
engaged in the following exchange:
THE COURT: Let me just clarify, you said that many
times you and others in the field rely on deposition
testimony; is that correct?
THE WITNESS: Yes.
THE COURT: But there are times that you and others in
the field rely on witness interviews?
THE WITNESS: Yes, Your Honor.
THE COURT: And you’re not the only one who does
this; other experts do this as well?
THE WITNESS: Yes, Your Honor.
THE COURT: And there was no deposition testimony
that was available to you in this case; is that correct?
THE WITNESS: Yes, Your Honor.
3
THE COURT: Are there other cases that you prepared
expert reports where there was no deposition testimony
that was available?
THE WITNESS: Yes, Your Honor.
THE COURT: And in those cases, do you also rely upon
witness interviews that you conduct?
THE WITNESS: Yes, Your Honor.
THE COURT: Do other experts in the field when they
don’t have deposition testimony available also
customarily rely upon witnesses to interview?
THE WITNESS: Yes, Your Honor.
(N.T., 12/15/16, at 12-13.)
SEPTA objected to Frazier’s testimony on the bases that the interview
subjects were not under oath; the interviews were not reduced to writing; and that
the credibility of the interviewees could not be tested. SEPTA also alleged that
Frazier’s expert opinion was based solely on the contents of the challenged
interviews, and that Frazier was simply acting as a conduit for that content. In
response to SEPTA’s objection, the trial court further questioned Frazier:
THE COURT: In preparing your. . . 14-page report as
part of your methodology, did you rely exclusively on
what those approximately six people said to you, or did
your investigation go beyond just those interviews with
those six people?
THE WITNESS: I formed my opinion based on much
more than those six people.
4
(N.T., 12/15/16, at 120.) Frazier then elaborated on other sources of information
that informed his opinion in this case, including the depositions of Hooks and
SEPTA police and safety personnel, and SEPTA policies and records.
The trial court overruled SEPTA’s objection to Frazier’s testimony.
However, the trial court did deliver a special instruction2 to the jury immediately
after accepting Frazier as an expert witness:
Ladies and gentlemen of the jury, before we proceed
further, let me explain to you that as part of Mr. Frazier’s
testimony you will be hearing testimony. . . regarding
statements made to him by various SEPTA employees
who may or may not be coming in as witnesses to testify
later in the trial.
It is important to recognize that these statements
regarding those SEPTA employees—regarding the
statements that the SEPTA employees made to Mr.
Frazier are admitted to you only for a limited purpose,
and that is to explain the bases or part of the bases of Mr.
Frazier’s testimony.
The statements are not admissible and should not be
considered by you as substantive evidence of the truth
that they assert.
(N.T., 12/15/16, at 146.)
2
“When an expert testifies about the underlying facts and data that support the expert’s
opinion and the evidence would be otherwise inadmissible, the trial judge upon request must, or
on the judge’s own initiative may, instruct the jury to consider the facts and data only to explain
the basis for the expert’s opinion, and not as substantive evidence.” Pa.R.E. 703 cmt.
5
Frazier testified that, in his opinion based on his experience, training
and all of the information available to him: (1) SEPTA failed to ensure the safety
of its crews; (2) SEPTA failed to adequately train its crew members to deal with
unruly passengers; and (3) SEPTA failed to provide sufficient police or security
coverage in the Wilmington line. At the conclusion of the trial, the jury found in
favor of Hooks on the issue of negligence and awarded her $229,000 in damages.
On appeal, SEPTA argues that the trial court erred by allowing Frazier
to present his opinion to the jury because it was based on impermissible hearsay
and “lacked the requisite factual underpinnings, independent analysis and
reliability.” (SEPTA’s brief, 11/23/16, at 3.) SEPTA seeks a new trial. However,
this Court will award a new trial on appeal “only if the trial court abused its
discretion or committed an error of law that controlled the outcome of the case.”
Cummings v. State System of Higher Education, 860 A.2d 650, 654 (Pa. Cmwlth.
2004) (citation omitted). “The admission of evidence is committed to the sound
discretion of the trial court and will not be reversed absent an abuse of discretion.”
Commonwealth v. Chamberlain, 731 A.2d 593, 595 (Pa. 1999). “Discretion is
abused when the law is not applied.” Id.
The boundaries and admissibility of expert testimony are controlled
by Article VII of the Pennsylvania Rules of Evidence. Rule 703 provides as
follows:
An expert may base an opinion on facts or data in the
case that the expert has been made aware of or personally
observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming
6
an opinion on the subject, they need not be admissible for
the opinion to be admitted.
Pa.R.E. 703. In applying Rule 703, the Superior Court has held as follows:
It is well-established that an expert may express an
opinion which is based on material not in evidence,
including other expert opinion, where such material is of
a type customarily relied on by experts in his or her
profession. Collins v. Cooper, 746 A.2d 615, 618 (Pa.
Super. 2000); Primavera v. Celotex Corp. . . 608 A.2d
515 (Pa. Super. 1992). Such material may be disclosed at
trial even though it might otherwise be hearsay. . . Such
hearsay is admissible because the expert's reliance on the
material provides its own indication of the material's
trustworthiness: “The fact that experts reasonably and
regularly rely on this type of information merely to
practice their profession lends strong indicia of reliability
to source material, when it is presented through a
qualified expert's eyes.” Primavera, 608 A.2d at 520.
In re D.Y., 34 A.3d 177, 182 (Pa. Super. 2011).
Though SEPTA complains that the trial court erred by permitting the
jury to hear expert testimony based on inadmissible hearsay, the express language
of Rule 703 and case law permit such expert testimony where “experts in the
particular field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject.” Id. The critical inquiry is not whether the information
underlying an expert’s opinion would be admissible standing alone. Rather, it is
whether the information is of the type that experts in a field reasonably rely upon
when forming opinions.
7
In In re Adoption of R.K.Y., an expert in child psychology opined that
a mother was unable to safely parent her children. 72 A.3d 669, 673 (Pa. Super.
2013). The expert’s opinion was informed in part by a review of reports of
psycho-sexual evaluations of four children who did not testify at trial. Id. The
expert did not conduct the interviews of the children; the evaluations were
conducted by the expert’s colleagues. Id. The expert testified that “reliance on
interviews when preparing a psycho-sexual evaluation, including interviews
conducted by colleagues, is ‘common practice in our field.’” Id. at 677. The
Superior Court ruled that, under those circumstances, the expert’s reliance on
interviews in forming her opinion “[satisfied] the basic prerequisites for admission
under Rules 703 and 705.” Id. In this case, the trial court accepted Frazier’s
testimony that experts in his field rely on information obtained in interviews when
forming opinions. The trial court did not abuse its discretion in refusing to exclude
Frazier’s testimony on the ground that it was in part based on out-of-court
interviews.
SEPTA also argues that Frazier’s testimony “lacked the requisite
factual underpinnings, independent analysis and reliability” for expert testimony.
Rule 702 sets forth the criteria for expert testimony:
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 is beyond that possessed by the average
layperson;
8
(b) 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; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702. SEPTA’s challenge to the “factual underpinnings, independent
analysis and reliability” of Frazier’s testimony relates to the requirement set forth
in Rule 702(c) that an expert’s methodology be generally accepted in the relevant
field. However, Frazier testified to the satisfaction of the trial court that his
methodology was consistent with the methodology of experts in his field, and
SEPTA has not identified any evidence in the record that Frazier’s methodology
was inconsistent with accepted practice in his field.
Citing Luzerne County Flood Protection Authority v. Reilly, SEPTA
argues that an expert “is not permitted to merely restate another’s conclusions
without espousing his own expertise and judgement.” 825 A.2d 779, 784 (Pa.
Cmwlth. 2004). However, in this case the trial court found that:
In addition to his knowledge, training, and experience,
Captain Frazier also relied upon the following: (1)
records produced by [SEPTA] in discovery, including
police records for the Wilmington line and [SEPTA’s]
Passenger Operations Manual; and (2) his review of
deposition testimony of witnesses such as [Hooks], Ms.
Deidra Rich from [SEPTA’s] Training Department, and
Captain Charles Lawson from [SEPTA’s] Police
Department.
(Trial Court Opinion, 8/11/16, at 4) (citation omitted). The record does not support
SEPTA’s premise that Frazier merely parroted the opinions of others.
9
In Luzerne County, this Court stated:
The applicability of the rule permitting experts to express
opinions relying on extrajudicial data depends on the
circumstances of the particular case and demands the
exercise, like the admission of all expert testimony, of the
sound discretion of the trial court. Where, as here, the
expert uses several sources to arrive at his or her opinion,
and has noted the reasonable and ordinary reliance on
similar sources by experts in the field, and has coupled
this reliance with personal observation, knowledge and
experience, we conclude that the expert’s testimony
should be permitted.
825 A.2d at 784 (citation omitted) (emphasis in original). We cannot conclude that
the trial court abused its discretion in ruling that Frazier’s testimony was
admissible where the record supports the trial court’s conclusion that Frazier relied
on multiple sources of information of the types reasonably relied upon by experts
in his field, and where he also applied his own personal observation, knowledge
and experience in the formulation of his opinion.
The Superior Court’s discussion in Primavera v. Celotex Corporation
of the role, significance and limits of expert testimony in contemporary litigation is
highly instructive:
In noting the necessity and value of permitting experts to
rely on extrajudicial reports and sources, it is important
to stress that it is actually the testifying expert's opinion
which is being presented and which is subject to scrutiny,
cross-examination and credibility determinations. Hence,
it is often the case, as it was here, that experts are
questioned concerning whether relied-upon sources are
“authoritative” or generally accepted, whether the source
material is truly the type ordinarily relied on by similar
10
experts, whether independent or further judgment was
brought to bear on particular source material and whether
the expert is competent enough to judge the reliability of
the sources upon which he relied. These are the
safeguards which assure that the experts' opinions are not
being offered based on inherently untrustworthy data or
data which is not commonly used by other professionals.
If an expert has made faulty assumptions or leaps of
judgment in relying on certain sources or in forming
conclusions based on those sources, these issues are the
proper subject of cross-examination.
The relative roles of jury and expert in this context have
been described as follows:
In a sense, the expert synthesizes the primary source
material—be it hearsay or not—into properly
admissible evidence in opinion form. The trier of fact
is then capable of judging the credibility of the
witness as it would that of anyone else giving expert
testimony. This rule respects the functions and
abilities of both the expert witness and the trier of
fact, while assuring that the requirement of witness
confrontation is fulfilled.
United States v. Sims, 514 F.2d 147, 149 (9th Cir.1975),
cert. denied 423 U.S. 845, 96 S. Ct. 83, 46 L. Ed. 2d 66
(1975).
As this court has indicated, the crucial point is that the
fact-finder be made aware of the bases for the expert's
ultimate conclusions, including his partial reliance on
indirect sources. “The adverse party then has the
opportunity. . . to present its own countervailing facts and
figures and/or expert testimony to convince the factfinder
that the weight to be given to the other side's expert
testimony should be little or none”. In re Glosser Bros.,
Inc., 382 Pa. Super. 177, 202, 555 A.2d 129, 142 (1989).
608 A.2d 515, 520-21 (Pa. Super. 1992)
11
In this case, the trial judge had a basis in the record from which to
conclude that Frazier’s testimony was based on data of the type that experts in his
field customarily rely upon. Additionally, SEPTA had the opportunity to challenge
the bases of Frazier’s opinions and offer evidence to rebut Frazier’s testimony. We
find no error here.
For these reasons, we affirm the trial court’s order.
__________________________________
JULIA K. HEARTHWAY, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicole Hooks, :
:
v. : No. 946 C.D. 2016
:
Southeastern Pennsylvania :
Transportation Authority, :
Appellant :
ORDER
AND NOW, this 31st day of August, 2017, the order of the
Philadelphia County Court of Common Pleas is affirmed.
__________________________________
JULIA K. HEARTHWAY, Judge