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CSX Transportation, Inc. v. Kirkland

United States District Court, S.D. Georgia, Savannah Division

May 24, 2017

CSX TRANSPORTATION, INC., Plaintiff,
v.
JAMES MICHAEL KIRKLAND, TRANSPORTATION INC. AGENT GROUP, and NEW HAMPSHIRE INSURANCE COMPANY, Defendants.

          ORDER

         In this truck-versus-train property damage case, plaintiff CSX Transportation, Inc. moves to strike a defense expert witness report and exclude his testimony. Doc. 58. Defendants oppose. Doc. 631 doc. 67.

         I. BACKGROUND

         CSX seeks damages after a truck driven by James Michael Kirkland[1] stalled on its railroad tracks and was hit by an oncoming CSX train. Doc. 1. The accident resulted in damages to CSX's locomotive, crossing gates, and signal houses. Doc. 58. CSX also claims damages from managing traffic at the accident site and loss of use of its locomotive. Id. Defendants hired Rimkus Consulting Group, Inc. to analyze those damages. Rimkus, in turn, hired Allen W. Haley, Jr. as an independent contractor. Doc. 63. Haley has over 28 years of experience in the railroad industry and has expertise in both railroad accident investigations and operating budgets. Doc. 38-3.

         The defendants filed Haley's expert report on October 18, 2016, doc. 38, and CSX deposed him on February 6, 2017. Doc. 581 doc. 65. Discovery then ended on February 17, 2017. Doc. 47. On March 20, 2017, the last day to file motions, id., defendants filed an amended report based on the discovery that took place after they filed Haley's initial report.[2] Doc. 56. CSX moved to strike Haley's original report on the same day. Doc. 58. On April 3, 2017, defendants filed a second amended report in an attempt to respond to the concerns raised by CSX's strike motion. Doc. 63 at 5. CSX replied that it will file a separate motion to strike the two amended reports! it has yet to do so. Doc. 64.

         Haley's October 18, 2016 report contains a spreadsheet, Exhibit A, and two other exhibits, including one that states Haley's opinion that "[t]he investigation to date indicates that the driver may have tried to get across the tracks in a hurry when he heard the train approaching and the vehicle stalled and was struck. There is no indication at this time of any mechanical malfunction of the insured vehicle." Doc. 38-2 at 17. Within the report, there is an explanation of the exhibits, Haley's rate of compensation, and an assurance that a list of the cases he has testified in as an expert in the last four years will be provided within 14 days.[3] Doc. 38.

         Exhibit A, Haley's opinon, is a settlement estimate prepared as a spreadsheet that details CSX's post-accident expenses. Doc. 38-1. They are divided into various categories, including "Labor Roadway, " "Labor Signal, " and "Material Inven New." Id. There are specific line item expenses under each category. Id. For example, under "Labor Roadway, " there is a line item expense for "Overtime Labor-Flagging." Id. For each line item, Haley includes the amount claimed by CSX, a verified claim total, an adjustments total, comments, and then his settlement estimate. Id. On the last page, Haley lists his grand totals, including the "CSX Invoice Total, " the "Verified Total, " the "CSX Invoice Total -- Adjustments, " the "Settlement Estimate, " and the "Estimated CSX Settlement Value." Id. Exhibit B contains all of the information Haley used to prepare his opinion, including pictures of the accident and resulting damage, a news report, the police report from the accident, and invoices from CSX and the police department for expenses incurred after the accident. Doc. 38-2. Exhibit C is Haley's qualifications and list of publications. Doc. 38-3.

         In Haley's first amended report, he revised Exhibit A based on the discovery that unfolded after he filed his first report. Doc. 56. Haley increased the total settlement estimate from $191, 355.36 to $249, 360.56. Id. Defendants explain in the second amended report that the estimate increased because the additional discovery allowed Haley to verify more of CSX's claims. Doc. 61. Haley also offered an opinion on liability based on the deposition of a CSX employee and the event data recorder printout. Doc. 56.

         Haley's second amended report attempts to address the concerns in CSX's strike motion. Doc. 61. Exhibit 1 is a revised version of his opinion, (Exhibit A in the first two reports) and Exhibits 2-6 are his notes and calculations. Id. Haley altered his spreadsheet, Exhibit 1, by removing the footer that states "This document is prepared for the purposes of claim settlement only and is not an admission of liability or is it intended to be proof of the validity, invalidity, or the specific amount of the claim that is in dispute." Doc. 38. He also deleted the lines for "CSX Invoice Total, " "Verified Total, " "CSX Invoice Total-Adjustments, " "Settlement Estimate, " and "Estimated CSX Settlement Value." Doc. 61

         Next, the defendants explain that there is a $26, 000 difference between "Claim Total Verified" and "Settlement Estimate" because CSX has not provided documentation supporting that amount. Id. They also point out that the "overhead markup" reduction in the comments column means that Haley calculated his estimate figure based on an employee's hourly wage plus 62% to cover employee benefits. Id. Haley calculated the figures based on his knowledge and experience, and his calculations are contained in Exhibit 4. Id. Haley changed the 62% to 65% in some areas to match his deposition testimony! those calculations are contained in Exhibit 5. Id. The report also explains that the settlement estimate increased in the first amended report because Haley was able to verify more damages figures when he reviewed documents that were produced after he filed his first report. Id.

         The defendants then confirm that Haley's report is based on CSX's full claim documents, including pages 1-88 that were not included with the original report. Id. They reconfirm that Exhibit 1 represents Haley's full opinion, plus his reasons and the basis for his opinion. Id. Finally, Exhibit 6 is Haley's notes on the event data recorder download that he used to prepare his opinion on precisely when Kirkland's truck entered CSX's railroad crossing. Id.

         II. Analysis

         A. Expert Report - Substance Requirements

         CSX moves to strike Haley's first report and expert testimony on the grounds that the report does not comply with Fed.R.Civ.P. 26(a)(2)(B), which states that an expert report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them! (ii) the facts or data considered by the witness in forming them! (iii) any exhibits that will be used to summarize or support them! (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years! (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at ...

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