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. e du/thir dc ir c uit_1998/117Filed May 22, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 97-1306, 97-1361, 97-1362, 97-1363

FRANK LAURIA, Appellant in Appeal No.

97-1306

v.

NATIONAL RAILROAD PASSENGER CORPORATION, Appellant in Appeal Nos. 97-1361/62/63

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 95-1561)

Argued: March 17, 1998

Before: SLOVITER, RENDELL, and SEITZ, Circuit Judge s

(Opinion Filed: May 22, 1998)

Marvin I. Barish Stacey E. Barish (ARGUED) Marvin I. Barish Law Offices, P.C. The Curtis Center, Suite 801
Sixth & Walnut Streets Philadelphia, PA 19106 Attorneys for Appellant, Cross- AppelleeDavid E. Faust

Andrew J. Connolly (ARGUED)
Sheila A. Haren Post & Schell, P.C. 1800 JFK Blvd., 19th Floor Philadelphia, PA 19103 Attorneys for Appellee, Cross-Appellant

OPINION OF THE COURT

RENDELL, Circuit Judge:

Appellant Frank Lauria and two railyard co-workers were traversing the railroad tracks near Philadelphia's 30th Street Station late one evening when Lauria slipped and injured himself. He sued his employer, Appellee Nat ional Railroad Passenger Corporation ("Amtrak"), under th e Federal Employers' Liability Act, 45 U.S.C. S 51, e t seq., ("FELA"), claiming a workplace injury caused by Amt rak's failure to provide a reasonably safe work environme nt. At trial, the district court refused to permit the adm ission of expert and lay opinion testimony, and at the close of Lauria's case it entered a judgment as a matter of law in favor of Amtrak. We have jurisdiction over the dist rict court's ruling pursuant to 28 U.S.C. S 1291, and we will
reverse and remand for a new trial.

I.

On November 8, 1993, Lauria slipped while crossing the tracks at Amtrak's Penn Coach Yard in Philadelphia with two co-workers, Campbell Smith, an engineer, and Ca rl Boselli, a conductor. Lauria testified that because they were crossing a "dark" railyard with "poor" lighting con ditions, he was trying to step on the ballast, the coarse gr avel that is used to form the bed of the railroad, rather tha n on the rail ties themselves, because it provides stable fo oting and support between the tracks. However, Lauria lost hi s balance and fell on Track 26 while trying to step o ver the
ties. He stated under oath that he raised his left foot, lifted

2it over the rail, and set it firmly on the ballast. He then

lifted his right foot, but he slipped when trying t o place that foot down on the ballast, and he fell to the ground
, developing sharp pains in his right leg and lower b ack before losing consciousness. Lauria admitted that h e never saw what caused the fall, but he testified that he had stepped on "something slippery," rather than on the ballast that is usually found between the two rail ties on the

tracks.

Boselli testified that he was standing an "arm's le ngth"
from Lauria when the accident occurred. Boselli saw Lauria fall, heard him "smack" onto the ground, and felt " baffled" because Lauria "fell violently." Immediately after the accident, Boselli looked down and saw a "fresh" ski d mark on the surface of a piece of wood that was lying in side the gauge of the track where the ballast providing stab le footing would normally be found. The wood was in the exact area where Lauria had slipped, and the skid mark was at the precise spot where the fall had occurred. Boselli a lso noticed that the lighting conditions were "poor," b ecause the overhead lights did not sufficiently illuminate the area where Lauria fell, and because the trains "were blo cking the passage of what lights did exist."

Lauria attempted to offer Robert T. Slavin, a track foreman and maintenance engineer, to support his ca se as an expert witness under Federal Rule of Evidence 70 2. Slavin was prepared to testify that Amtrak's neglig ence in failing to remove a piece of wood from the tracks h ad contributed to and caused Lauria's injuries. Howeve r, the
district court found that Slavin was not sufficient ly qualified as an expert on track maintenance operati ons, and it refused to allow him to render an opinion. T he court also rejected Lauria's effort to introduce Slavin a s a lay witness pursuant to Federal Rule of Evidence 701. A s a result, Lauria sought to recall Boselli as a lay op inion witness to testify about the condition of the track s on the morning after the accident. Once again, though, the district court denied Lauria's request under Rule 701 and precluded the witness from testifying. Amtrak then moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a), arguing that without the testimony of

3Slavin and Boselli, Lauria had presented no evidenc e that

Amtrak's negligence had contributed to his injuries . The district court agreed, and on March 27, 1997, it di smissed Lauria's claims and entered judgment in favor of Am trak at
the close of Lauria's case.

Lauria contends on appeal that the district court a bused its discretion in excluding the testimony of Slavin and Boselli and erred in entering a judgment in Amtrak' s favor.1
We need not reach the issue of the correctness of t he district court's ruling on the motion for judgment as a matter of law, because we conclude that Lauria's fa ilure to produce evidence of negligence resulted from the im proper exclusion of testimony from Slavin and Boselli that was clearly admissible.2 Therefore, we will reverse and remand for a new trial at which Slavin and Boselli may tes tify on
Lauria's behalf.

II.

The district court incorrectly prohibited Slavin fr om testifying as an expert witness. Federal Rule of Ev idence 702 provides that "[i]f scientific, technical, or o ther specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in i ssue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify the reto in the

___________________________________________________ ______________

1. We review the district court's decisions to excl ude expert testimony under Rule 702, and to exclude lay opinion testimon y under Rule 701,
for abuse of discretion. See In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 856 n.33 (3d Cir. 1990) (expert testimony); Go vernment of the V.I. v. Knight, 989 F.2d 619, 629 (3d Cir. 1993) (lay op inion testimony).

2. Although we need not decide the propriety of the court's judgment as a matter of law based on the evidence before it, we note that it is a

close question given the minimal proof required to withst and a directed verdict
in FELA cases combined with Lauria's evidence as to poor lighting in the railyard. See Pehowic v. Erie Lackawanna R.R. Co., 430 F.2d 697, 699-700 (3d Cir. 1970) (footnotes omitted) (emphasi s added) (holding that a "trial court is justified in withdrawing[FEL A] issues from the jury's consideration only in those extremely rare i nstances where there is a zero probability either of employer negligence or that any such negligence contributed to the injury of an employee ").

4form of an opinion or otherwise." The Rule therefor e has

three fundamental requirements: (1) the proffered w itness must qualify as an expert by knowledge, skill, expe rience, training, or education; (2) the expert must testif y to scientific, technical, or other specialized knowled ge; and (3) the expert's testimony must assist the trier o f fact. United States v. Velasquez, 64 F.3d 844, 849 (3d Ci r. 1995). Here, the district court appears to have excluded S lavin's testimony based on the first two elements of the te st, evincing skepticism as to both the extent of Slavin 's qualifications and as to whether he possessed speci alized knowledge.3

Lauria offered Slavin as an expert in track mainten ance based on his experience and education in "Maintenan ce of Way" and related train procedures. Slavin's expert report contained his opinion that, from an examination of photos and the site, the piece of wood in question was a"b ase tie" over which a walkway platform once existed; that it should have been discovered by Amtrak during a regular inspection and removed; and that it "contributed to and caused" Lauria's injuries.4

___________________________________________________ ______________

3. The district court's colloquy with Slavin, set f orth below, could be interpreted as questioning either the first element of the Rule -- whether Slavin qualified as an expert by virtue of his spec ial knowledge -- or both of the Rule's first two prongs -- his experien ce and the nature and extent of his knowledge regarding track maintenance . We will construe it based on the latter, believing that to be the ap proach most consistent with the nature of the court's inquiry.

4. At oral argument Amtrak argued that the district court properly excluded Slavin's testimony, because Slavin could n ot testify as to causation since he was not an expert in accident re construction. However, this argument misconstrues the district co urt's ruling, which never reached this issue, but focused instead on th e extent of his "specialized knowledge" as it relates to qualifying him to be an expert
witness. No mention was made of the last sentence o f Slavin's report regarding his stated view that Amtrak's failure"to provide a reasonably safe place in which to perform his duties contribut ed to and caused Lauria's injury." We thus focus only on Slavin's qu alifications and specialized knowledge in the area of industry stand ards for track
maintenance. It will be for the district court to e xamine whether Slavin is qualified to speak to the issue of causation if Amtrak makes this objection at a new trial.

5Lauria proffered evidence as to the extent of Slavi n's

experience in railroad track operations. Slavin had worked for Consolidated Rail Corporation ("Conrail") from 1976 to 1993, where he was hired as a trackman and then promoted to machine operator, assistant supervisor, and, in 1981, to supervisor of railroad tracks. As a superv isor, Slavin assumed ultimate responsibility for conditio ns on a 200-300 mile stretch of track located in Indiana. A mong other things, he oversaw maintenance of the track structure, installation of the rail ties, and rehab ilitation of all switches, and he was responsible for records, chargeouts, and safe maintenance of the area. Slavi n also successfully completed training programs for track foremen, maintenance and way engineers, equipment operators, and supervisors during his seventeen-yea r tenure at Conrail. In addition, he had been self-em ployed as a railroad track safety consultant since 1993.

In pretrial proceedings, the district court had den ied
Amtrak's motion in limine to exclude Slavin's testi mony. See Lauria v. National R.R. Passenger Corp., No. Ci v. A. 95-1561, 1997 WL 138906, at *6-7 (E.D. Pa. March 24
, 1997). However, after listening to the voir dire, a nd asking its own questions, the district court rejected Laur ia's

___________________________________________________ ______________

We note, however, that counsel for Lauria stated at oral argument that
Slavin's work in accident reconstruction over the l ast five years did provide a basis for his expert status on causation, and that a number of federal courts have permitted experts qualified bec ause of their specialized knowledge to testify as to the cause of railroad accidents.
See, e.g., Lowery v. Illinois Cent. Gulf R.R. Co. , 891 F.2d 1187, 1194 & n.3 (5th Cir. 1990) (witness with ten years experience as train master, operating rules examiner, manager of railroad car r epair, and inspector of railroad equipment was qualified as an expert on whether hand brake operations could cause personal injuries); Fritts v . Toledo Terminal R.R. Co., 293 F.2d 361, 364 (6th Cir. 1961) (engineer wi th forty years of railroad experience could testify that worn frogs, or railroad track devices, caused a train to lurch, because "[q]ualif ied persons as experienced railroad employees may testify and expr ess opinions on matters of this type"); Atchison, Topeka & Santa Fe Ry. Co. v. Simmons, 153 F.2d 206, 208-09 (10th Cir. 1946) (locomotive e ngineers with experience operating trains qualified as experts to testify as to whether the presence of caliche rock caused a train derailm ent).

6request to introduce Slavin at trial as a qualified expert on

track maintenance.5 The court's examination of Slav in proceeded in relevant part as follows:

The Court: Now the first question, do you consider yourself qualified by reason of your scientific education? Do you feel yourself qualified to testify as an expert based on your technical knowledge by reason of education or experience and if so would you be specific a s to what you think that is? Technical knowledge.

Slavin: I believe so with the hands-on experience t hat I've had over the years working with track and tr ack equipment and maintenance and production, ye s,
I --

The Court: You consider that to be your specialized knowledge?

Slavin: Yes.

The Court: And what separates you from other person s who have worked for twenty years on the
railroad? Would all of those . . . ladies or gentlemen who have had the same experience -- work experience as you, in your mind, sir
, do you consider them to be persons who have the type of technical or specialized knowled ge who can come into a court of law and give answers to hypothetical questions like a doc tor
does?

Slavin: I believe so.

The Court: And why is that? What is so unusual abou t working the rails as you have over the years which gives persons who had that experience specialized knowledge of the type that would enable them to offer an opinion, to hypothecate?

___________________________________________________ ______________

5. Under Fed. R. Evid. 104(a), the trial judge deci des the preliminary questions of whether the proposed expert is qualifi ed and whether the testimony is admissible.

7Slavin: I don't have an answer for that.

The Court: And that's my dilemma. . . . I'm not qua lifying him as an expert. . . . I don't see any basi s to qualify him as an expert.

We must exercise restraint in examining the distric t court's decision on appeal, because a "trial court' s determination whether to admit or exclude expert te stimony will be upheld unless manifestly erroneous." Waldor f v. Shuta, ___ F.3d ___, Nos. 97 5195, 97-5222, 1998 WL 173103, at *27 (3d Cir. Apr. 15, 1998) (quotation o mitted). Nevertheless, we find that in light of Slavin's qua lifications and the liberal standard for determining whether a witness qualifies as an expert for purposes of Rule 702, th e district court did err in precluding Slavin from testifying. 6

We have consistently maintained that Rule 702 is to be interpreted liberally. See, e.g., Velasquez, 64 F.3 d at 849; In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 855 (3 d Cir. 1990) ("Paoli I"). "[A] broad range of knowledge, s kills, and training qualify an expert as such," and we have th us "eschewed imposing overly rigorous requirements of expertise and have been satisfied with more general ized qualifications." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994) ("Paoli II").

In fact, "it is an abuse of discretion to exclude t estimony simply because the trial court does not deem the pr oposed expert to be the best qualified or because the prop osed expert does not have the specialization that the co urt considers most appropriate." Holbrook v. Lykes Bros . S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996); see also Paol i I, 916 F.2d at 855 (writing that any "insistence on a cert ain kind of degree or background is inconsistent with our jurisprudence"). We have held that witnesses such a s Slavin can qualify as experts under Rule 702 on the basis of practical experience alone, and a formal degree, title, or educational speciality is not required. American Te ch.

___________________________________________________ ______________

6. Because we hold that Slavin should have been per mitted to testify as an expert witness, we do not reach Lauria's content ion that Slavin should have been permitted to testify alternatively as a lay witness pursuant to Fed. R. Evid. 701.

8Resources v. United States, 893 F.2d 651, 656 (3d C ir.

1990). For example, in Hammond v. Int'l Harvester C o., we held that a witness who sold agricultural equipment and taught automobile repair and maintenance at a high school, but who lacked any formal training or educa tion, could testify as an expert in a products liability action involving tractors, based on his "knowledge and exp erience" alone. 691 F.2d 646, 653 (3d Cir. 1982). Similarly, we held recently that a witness could qualify as a vocation al expert, despite a lack of formal training, because he had e xperience in vocational rehabilitation and familiarity with t he relevant literature in his field. Waldorf, #6D6D 6D# F.3d __ _, 1998 WL 173103, at *27; see also United States v. Riccobene , 709 F.2d 214, 230-31 (3d Cir. 1983) (concluding that an FBI agent qualified as an expert to define certain term s on undercover audiotapes because of his twelve years o f practical experience in organized crime investigati ons), overruled on other grounds by Griffin v. United Sta tes, 502 U.S. 46 (1991); 4 Jack B. Weinstein & Margaret A. B erger, Weinstein's Federal Evidence S 702.06[4], at 702-39 (2d ed. 1997) ("A person may qualify as an expert on the ba sis of skill or practical experience rather than education or training."). We conclude that Slavin's twenty years of experience with track equipment, maintenance, and s afety procedures qualified him as an expert who could tes tify as to Amtrak's responsibility to inspect and maintain the track
in a safe condition.

Additionally, the knowledge forming the basis of Sl avin's opinion was clearly "specialized." In evaluating th is second element of Rule 702, we measure the reliability or trustworthiness of the expert's testimony. Velasque z, 64 F.3d at 849. However, the "specialized" knowledge u pon which Slavin's testimony is founded is not the same as "scientific" and "technical" knowledge, as these te rms are used in the disjunctive in Rule 702. To be "special ized," knowledge can be based on sufficient practical or w ork experience in the field about which the witness is testifying, and it need not be based on testing or experiments beyond common understanding. Fed. R. Evid. 702, advisory committee's note; Habecker v. Copperloy Corp. , 893 F.2d 49, 51-52 (3d Cir. 1990). Therefore, we need only a sk whether Lauria has shown that Slavin's testimony wo uld be

9reliable or trustworthy in light of Slavin's practi cal

background and training.7 We conclude that given Sl avin's twenty years of experience in track maintenance, operations, and safety, and given the nature of his opinion and the liberal standard by which we interpret reli ability under Rule 702, Velasquez, 64 F.3d at 849-50, Lauri a has clearly met his burden to demonstrate that Slavin's testimony would be sufficiently reliable so as to b e admissible.

We also find that the third element under Rule 702, namely, that Slavin's testimony would assist the tr ier of fact, is clearly met. As the Supreme Court has writ ten, this "condition goes primarily to relevance." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993). The pro ffered expert's testimony must "fit" under the facts of th e case so that "it will aid the jury in resolving a factual d ispute." Id. (quoting United States v. Downing, 753 F.2d 1224, 1 242 (3d Cir. 1985)). Once again, however, the standard for this factor "is not that high," Paoli II, 35 F.3d at 745 , and we find that it has been met in the case at bar. The p rimary issue here is whether Amtrak was negligent in faili ng to remove a base tie from Lauria's workplace. Slavin w as the only witness originally presented to testify that t he tie was a dangerous obstruction that should have been disco vered and removed, and was the only such witness who woul d have asserted that Amtrak's negligence made the wor kplace unsafe. There is, therefore, a clear "fit" connecti ng the issue

___________________________________________________ ______________

7. This case does not require us to test the reliab ility of Slavin's opinion
with the factors outlined in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Whether Daubert even applies outside th e scientific context remains in dispute. See, e.g., id. at 590 n.8 (noti ng that the opinion was "limited to the scientific context because that[was ] the nature of the expertise" offered in the case); Watkins v. Telsmit h, Inc., 121 F.3d 984, 991 (5th Cir. 1997) (Daubert is applicable to cases involving specialized knowledge); United States v. Webb, 115 F.3d 711, 71 6 (9th Cir. 1997) (Daubert's standards "simply do not apply" to exper ts with specialized knowledge). We do not, however, need to resolve tha t controversy here. Because Slavin's opinion is based on his observatio ns and familiarity with "Maintenance of Way Procedures" and is gleaned from years of practical experience, the discipline in this case i s so different from a scientific inquiry that we see no need to engage in a detailed analysis regarding the scientific reliability of the proffer ed opinion.

10in the case with the expert's opinion, which will a id the jury

in determining whether the defendant's conduct met the standard of care. Consequently, we conclude that Sl avin should have been permitted to testify.

Finally, we note that because Slavin was the only w itness originally offered to prove Amtrak's negligence wit h respect to the base tie, his exclusion from the trial did n ot constitute harmless error. The exclusion of expert evidence will be upheld as harmless error only where it is"h ighly probable" that the error did not affect the judgmen t in the district court. Holbrook, 80 F.3d at 787. After rev iewing Slavin's proffered testimony, as well as the basis for the district court's ruling, we cannot say that it is"h ighly probable" that the error in this case did not contr ibute to the entry of a judgment in Amtrak's favor.

III.

We also conclude that the district court abused its discretion in rejecting Lauria's request to recall Boselli as a witness to render a lay opinion under Rule 701. Onc e the district court rebuffed Lauria's attempt to introdu ce Slavin as an expert witness, Lauria sought to have Boselli testify about the condition of the tracks as he perceived t hem on the morning after the accident. The record indicate s that Boselli would have opined that Lauria slipped on an extra piece of wood that was located between the tracks i n an area where train employees would ordinarily expect to find ballast. However, after discussing the matter with the parties, the district court concluded that Boselli could "add nothing more as a lay witness," and it denied Lauri a's request to recall him to the stand because, in its view, Boselli had "no information to give to the jury whi ch would in any way, shape, or form aid them in their determ ination regarding the location of the fall and what caused the fall."

We disagree. Federal Rule of Evidence 701 states:

If the witness is not testifying as an exper t, the witness' testimony in the form of opinions or inferen ces is limited to those opinions or inferences whic h are (a) rationally based on the perception of th e witn ess

11and (b) helpful to a clear understanding of the wi tness'

testimony or the determination of a fact in issue.

The district court did not view Boselli's proffered testimony as helpful to the determination of Amtrak's neglige nce, and it thus prohibited Boselli from testifying based on the language in Rule 701(b). Yet we believe that the st andard for admissibility under that provision is liberal e nough to allow Lauria to recall Boselli in support of his ca se-in-chief.

We have noted concerning the admissibility of lay o pinion testimony that the "modern trend favors the admissi on of opinion testimony, provided that it is well founded on personal knowledge and susceptible to specific cros sexamination." Teen-Ed, Inc. v. Kimball Int'l, Inc., 620 F.2d 399, 403 (3d Cir. 1980). Therefore, an opinion is"h elpful" to the trier of fact within the meaning of Rule 701 (b) if it aids or clarifies an issue that the jury would not otherwise be as competent to understand. See United States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982) ("Opinions of non -experts may be admitted where the facts could not otherwise be adequately presented or described to the jury in su ch a way as to enable the jury to form an opinion or reach a n intelligent conclusion.") As long as the "circumsta nces can be presented with greater clarity by stating an opi nion, then that opinion is helpful to the trier of fact." Gove rnment of the V.I. v. Knight, 989 F.2d 619, 629 (3d Cir. 1993 ).

Boselli's opinion that Lauria slipped on an extra p iece of wood on the tracks easily satisfies these permissiv e standards. His testimony would have shown the exist ence of an unforseen obstruction in the exact location w here Lauria fell, which, in turn, could have assisted th e jury in determining whether the wood posed an unreasonable danger to railroad employees crossing the tracks. Regardless of what other evidence had been presente d at trial, Boselli's statements would have informed the jury as to issues of track maintenance and safety encounter ed in the ordinary course, and would have identified a po tential hazard that was central to Lauria's theory of negli gence. Moreover, nothing in the record suggests that Bosel li lacked the experience or specialized knowledge needed to r ender an opinion on this issue. In this regard, the insta nt case differs materially from Asplundh Mfg. Div. v. Bento n Harbor

12Eng'g, 57 F.3d 1190, 1201 (3d Cir. 1995), where we held

that lay opinions on technical matters such as caus ation "must derive from a sufficiently qualified source a s to be reliable and hence helpful to the jury."

Accordingly, we conclude that the district court er red by prohibiting Lauria from recalling Boselli to the st and, because Boselli's lay opinion testimony certainly w ould have been "helpful" to the "determination of a fact in issue" within the meaning of Rule 701. Also, given the sub stance of Boselli's proffered testimony in the context of Lauria's case, we cannot conclude that the court's error in excluding Boselli's testimony was harmless. See Holbrook , 80 F.3d at

787.

IV.

Amtrak has filed a cross-appeal challenging several of the district court's rulings, but we reject these conte ntions because we agree substantially with the reasoning o f the district court. We will thus affirm the February 19 , 1997, denial of Amtrak's renewed motion for summary judgm ent, the March 24, 1997, denial of Amtrak's motion in li mine to exclude the testimony of John Mariani, D.O., I. Dav id Weisband, D.O., and Robert T. Slavin, and the March 24, 1997, grant of Lauria's motion in limine to exclude Slavin's personnel and medical records.

V.

The district court abused its discretion by excludi ng the testimony of Robert T. Slavin as an expert witness, and by prohibiting Lauria from recalling Carl Boselli to t he stand as a lay opinion witness. Accordingly, the district court's Order dated March 27, 1997, will be reversed, and t he
cause will be remanded for a new trial consistent w ith this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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