United States District Court, S.D. Georgia, Savannah Division
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.
seeks damages after a truck driven by James Michael
Kirkland 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.
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. 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.
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. Doc. 38.
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.
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.
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
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.
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.
Expert Report - Substance Requirements
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
(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 ...