AMTRAK ENGINEER SETTLES WITH AMTRAK AND CSX AFTER APPEALS
By: Richard N. Shapiro, Attorney
On August 21, 2000 an Amtrak passenger train derailed in Lake City, South Carolina. Minutes before the derailment, a privately owned street sweeper, had jumped a nearby street curb, and bounded up the CSX right of way where it collided with part of the tracks. The sweeper operator backed the sweeper down from the tracks where he was promptly being ticketed by the local police. During this time, the fast moving Amtrak train approached Lake City, and was caused to derail because the sweeper’s contact had forced the tracks out of alignment. Many passenger and crew injuries resulted, including the Amtrak engineer. Southern companies owned the sweeper, and its operator was Ervin Lucky.
CSX owned and maintained the track. Southern companies insurance was insufficient to pay all the various claims. The Amtrak Engineer suffered various orthopedic back and knee injuries, and was later diagnosed with a mild traumatic brain injury.
Some cases become legal wars, that unfortunately do not resolve easily, and the story below involves one such situation where legal appeals were required, but in the end our client achieved adequate compensation.
Once our firm was retained a careful study was made of the sweeper damage, as numerous pictures were taken at the accident scene by law enforcement, the Federal Railroad administration and/or NTSB. Sweeper damage photos showed a broken off piece of railroad cross tie, lodged in the suspension system near one of the sweeper front tires. Also, a distinct metal crease was visible in the front metal bumper of the sweeper. We retained an accident reconstruction engineer from California, Robin Harrison, and arranged a site inspection. We decided to cooperate with counsel for the sweeper company, explaining that by bringing the sweeper back to the scene of the accident, we intended to conduct a land survey, take measurements and photographs and forensically determine whether a lack of railroad ballast rock section profile, at the area of the sweeper contact, contributed to causing the track to misalign.
Our working theory was that the lack of a full ballast section permitted the sweeper to bash into the cross-ties and the metal rail. Later, all of the data was plugged into a three-dimensional computer program to track the actual movement of the sweeper to the contact point with the railroad track structure. Two different three-dimensional visuals were created: 1) showed how the sweeper actually contacted the tracks based on the deficient ballast rock profile; and 2) showed what would have happened with a ballast rock profile in accord with CSX's written specifications. Interestingly, even before our land survey and re-creation, Amtrak and CSX had retained their own engineer who had issued a report which confirmed that the crease in the front metal bumper was from striking the metal rail, and that the piece of cross tie found under the sweeper will, was from the contact area.
When our California engineer issued his report including all of the visual imagery, the forensic evidence was devastating to Amtrak and CSX-- it clearly showed that the track would not have misaligned but for the failure of the ballast section to meet CSX's specification, which called for a 2:1 ballast slope from the edge of cross-ties downwards.. We further learned that the CSX specification was filed with the Federal Railroad Administration, pursuant to requirements of the Federal Rail Safety Act, under the continuous welded rail regulations, 49 CFR 213.119. By obtaining results of a Freedom of Information Act request to the FRA, we proved exactly what CSX had filed which included not only the ballast profile specification, but various other provisions specifying the importance of a proper ballast section to track stability. We also retained both a retired CSX roadmaster, as well as a retired Federal Railroad Administration track Inspector/supervisor on these issues.
On the morning of trial against the Southern companies, Mr. Lucky, Amtrak, and CSX, the railroad lawyers argued for the first time that a California reconstruction engineer could not testify in the South Carolina trial court because he lacked a South Carolina engineering license under a South Carolina statute, section 40 -- 22 – 30. This statute had been amended in the year 2000 to include within the practice of engineering. "Expert technical testimony." Violation of this section constituted a misdemeanor. Despite our argument that the statute could not apply to forensic accident reconstruction testimony, and that the courts control the admission of expert testimony, the trial court agreed with the railroad’s position, and excluded the engineer as well as all visual images associated with his testimony.
At the close of plaintiff 's evidence, the court then granted a directed verdict dismissing the railroads from our case—the court ruled that we did not have sufficient evidence that any negligence of either railroad contributed to the train wreck—it was solely the sweeper operator that was conceivably at fault. The jury then returned a $577,000 verdict against the only remaining defendants: Southern companies and its driver, Mr. Lucky.
Because of a prior high-low agreement with Southern companies based on available insurance coverage, the Amtrak engineer client received a very limited recovery. We promptly noted our appeal of the railroads’ dismissal on directed verdict.
We argued in our first appeal to the Supreme Court that the directed verdict was erroneous because our evidence, even with the exclusion of the accident reconstruction engineer, was sufficient to show that the sweeper driver's negligence concurred and combined with negligence of track owners CSX and employer Amtrak, and that this was a jury issue (concurring causes). Secondly, we argued that the trial court completely misconstrued the South Carolina engineer licensing statute. Our law firm as trial counsel drafted up the appeal brief, and we then retained John Nichols, of Columbia, South Carolina to act as lead appellate counsel to the South Carolina Supreme Court. John Nichols is an excellent appeal brief writer and helped organize and edit our brief.
Ultimately, we succeeded, and the South Carolina Supreme Court revived our case against the railroads, reversing several key Trial court decisions.
Relating to our argument that both railroad’s negligence combined with the sweeper operator’s negligence, (concurring causes argument) the South Carolina Supreme Court stated:
Concurring causes operate contemporaneously to produce the injury, so that it would not have happened in the absence of either…..[A]ppellant’s liability theory is that the inadequate ballast level was a contributing, concurring cause which combined with Lucky's negligence to produce Appellant’s injuries. We agree with [appellant] that the evidence presented was sufficient to create a jury question on each element of negligence, and therefore, the trial court erred by granting respondents' directed verdict motion.
Relating to the engineer licensing statute, I drafted this legal argument for our brief as follows:
The foremost reason this court should reverse the trial court is because the definition of the “practice of engineering” set forth under S.C. Code Ann. § 40-22-20 (22) (Supp. 2000) which was amended to include “expert technical testimony” must be read in connection with what is “unlawful”, pursuant to S.C. Code Ann. 40-22-30 (c) (Supp. 2000) which makes it unlawful “for an individual or firm to engage in the practice of engineering in this state... without being registered as an engineer or firm.” Under the plain meaning of the statutory revision, the engineering services must be in some way offered or advertised within South Carolina for the reach of the statute to even apply. Here, only forensic testimony was rendered.
At no time did Mr. Harrison reside in South Carolina, travel to South Carolina or offer his services to a consumer, business, or government entity in South Carolina. Mr. Harrison never offered his services (essentially forensic accident reconstruction services) directly to any consumer, business or governmental entity in South Carolina. Instead, Mr. Harrison was “specially retained” by counsel for plaintiff after commencement of litigation. If the interpretation of the licensing statute for engineers is broadly interpreted as contended by the railroads, the reach of the engineering licensing statute would be to every expert specially retained for the purposes of litigation, who at any time had an engineering degree or could be contended to offer expert testimony even marginally touching upon what a party contends was “engineering related.” The intent of the professional engineering licensing statute is to protect consumer’s and businesses within the state of South Carolina from contact with unqualified and/or unscrupulous persons seeking to hold themselves out as engineers to the South Carolina public, without the proper credentials or qualifications. See S.C. Code Ann. 40-22-10 (a) (Supp. 2000) The purpose of the statute is not to restrict the qualification or admission of expert testimony by specially retained experts residing and testifying by deposition outside the state of South Carolina whose testimony may be offered forensically in state court litigation in South Carolina.
The trial court also committed error when it made no effort to harmonize the South Carolina professional engineer licensing statute with the longstanding Rule 702, SCRE pertaining to expert testimony in South Carolina State Courts. The amendment to South Carolina’s professional engineer statute, S.C. Code Ann. § 40-22-10 et seq. (Supp. 2000), was enacted in a year 2000 amendment. S.C. Code Ann. § 40-22-20 (22) (Supp. 2000). The particular clause in controversy involved the addition of the words “expert technical testimony” to the definition of South Carolina’s engineering services regulated by the licensing statute. However, the amendment and the licensing statute read in its entirety included no explanation or indication of how this amendment would be harmonized with the longstanding Rule 702, SCRE respecting court admission of expert testimony, which states in pertinent part:
If the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Rule 702, SCRE. The licensing statute does not include any indication that it was intended to overrule Rule 702, SCRE, which allows an expert to testify about matters in which the expert’s expertise may assist the trier of fact. The gist of Mr. Harrison’s testimony involved accident reconstruction – arriving at conclusions relating to the angle, profile and implications of the manner in which the sweeper made contact with CSXT’s railroad track - not professional engineer activities.
In its opinion, the Supreme Court held as follows:
First, we agree with appellant [plaintiff] that one of the primary purposes of [the statute] is to shield South Carolina consumers from those who are not properly credentialed pursuant to the state's standards, but who nevertheless hold themselves out to be professional engineers. In the instant case, however, Harrison's role was as an expert witness in accident reconstruction engineering. His credentials, which include his status as a California licensed professional safety engineer, as well as his education in mechanical engineering, go to his qualifications as an expert witness, rather than as a professional engineer offering services in South Carolina. In other words, Harrison's services were being offered to a South Carolina jury, not to the state's citizens seeking traditional professional engineering services.
The court also found that the South Carolina rule of evidence, Rule 702 (modeled after the Federal rule of evidence) was the actual test for admission of the engineer testimony, and it was clear that engineer Harrison. "plainly qualified as an expert witness." Last, the court stated:
We refuse to endorse an interpretation of the professional engineer licensing statute which has the potential of either preventing out-of-state experts from testifying in South Carolina courts or imposing the unreasonable burden of getting licensed in the estate simply to be permitted to provide forensic testimony.
The court finally stated "we reverse the directed verdict… and remand for a new trial."
IN PREPARATION FOR SECOND TRIAL
About a month before the second trial, counsel for the railroads argued that the second trial should be solely limited to liability issues, as to Amtrak under the FELA, and as for CSX, pursuant to common-law negligence. The railroads argued that the $577,000 original verdict rendered against the trucking company and its driver was the adjudication of all damages, even though the railroads were not a party at the time of the verdict. Amazingly, the trial court judge agreed, and entered an order limiting trial to liability issues, ruling that if plaintiff prevailed against either defendant railroad, the original verdict, less any credit for prior payments by the trucking company, would be the complete monetary recovery by plaintiff .
We noted our second appeal to the South Carolina Supreme Court, seeking to overrule the new ruling limiting our trial to liability issues and a maximum $577,000 recovery, however, the railroads’ counsel argued that the appeal was premature, was essentially "interlocutory" and sought dismissal. The South Carolina Supreme Court refused the appeal without reaching the merits, on the basis that it was in "interlocutory.” The case was therefore remanded back to the Richland County Superior court. Our trial against the railroads would be limited to “liability” only, pending yet a third appeal.
SETTLEMENT WITH THE RAILROADS
Within 14 days before trial limited to the liability issues the case was settled, with CSX and Amtrak paying substantial sums in exchange for the release of all claims, and final resolution of the case.