Martin v. National Railroad Passenger Corporation

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

)
SHAWN MARTIN, )
Plaintiff, )
)
v. )
) C.A. NO. N19C-03-038 DJB
NATIONAL RAILROAD )
PASSENGER CORPORATION, )
d/b/a AMTRAK, )
Defendant. )

Submitted: April 28, 2023
Decided: June 15, 2023

ORDER

Upon Defendant’s Motion in Limine – DENIED.

This 15th day of June, 2023, having considered Defendant’s Motion in

Limine/Daubert Challenge, the Plaintiff’s Response, oral arguments of counsel and

the record in this matter; it appears to the Court that:

1. Plaintiff Shawn Martin (hereinafter “Plaintiff”) filed suit alleging

negligence against his employer, Defendant Nationwide Railroad Passenger

Corporation, d/b/a Amtrak, (hereinafter “Defendant”) pursuant to the Federal

Employers’ Liability Act (hereinafter “FELA”) alleging various claims of

negligence, including the failure to provide its Police Officer employees tasers for

carrying out their official duties.
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 2. This Court previously ruled that Plaintiff must present expert testimony

in order to make out a claim of negligence for such a failure.1 In doing so, the Court

gave Plaintiff additional time to obtain an expert. Following that allowance, Plaintiff

identified Anthony Grano as their expert, and provided his curriculum vitae and letter

report dated January 5, 2023, to Defendant. Thereafter, Defendant filed the instant

motion.

3. Defendant, while couching this motion as one in limine, argues that

Plaintiff’s expert fails under the Daubert standard for: 1) not being a qualified expert;

2) providing unreliable opinions and 3) failing to provide an opinion that can assist

the trier of fact. Plaintiff retorts that his expert is sufficiently qualified and the

testimony is relevant and will assist the jury in their determination.

4. First and foremost, the Court notes that this motion is not a motion in

limine, but a Daubert motion. The deadline for Daubert motions have passed,

however, because Plaintiff was afforded the opportunity to obtain an expert outside

of the dates prescribed by the Trial Scheduling Order, the Court will allow the motion

to proceed at this time on its merits.

5. Delaware Rule of Evidence 702 (“D.R.E.”) dictates the admissibility of

1
Shawn Martin v. Nationwide Railroad Passenger Corporation d/b/a Amtrak,
N19C-03-038 DJB Docket Item 72.
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expert testimony.2 D.R.E. 702 specifically provides that:
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 witness is qualified as an expert
by knowledge, skill, experience, training, or education; (b) the
evidence is relevant; (c) the expert’s opinion is based upon
information reasonably relied upon by experts in the particular
field; (d) the expert testimony will assist the trier of fact to
understand the evidence or to determine a fact in issue; and (e) the
expert testimony will not create unfair prejudice or mislead the
jury.3

6. The trial court acts as the gatekeeper for proffered expert testimony and

before allowing such testimony, must conclude that the expert opinion testimony is

both (i) relevant and (ii) reliable.4 Expert testimony is relevant if “it would assist the

fact finder in understanding the evidence or determining a fact in issue.”5 “Expert

testimony is reliable if it is premised on technical or specialized knowledge, which

requires the testimony to be grounded in reliable methods and procedures and

supported by appropriate validation—i.e., good grounds, based on what is known.”6

2
Smack-Dixon v. Wal-Mart, Inc., 2021 WL 3012056, at *2 (Del. Super. Ct. July 16,
2021).
3
D.R.E. 702.
4
Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1269 (Del. 2013)
(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)).
5
Marydale Preservation Assocs., LLC v. Leon M. Weiner & Assocs., Inc., 2022 WL
4394375, at *2 (Del. Super. Ct. Sept. 23, 2022) (internal quotation marks and
citations omitted).
6
Id.
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 7. The proponent of the expert evidence bears the burden of establishing

its admissibility by a preponderance of the evidence.7 “There is a ‘strong preference’

for admitting expert opinions ‘when they will assist the trier of fact in understanding

the relevant facts or the evidence.’”8

QUALIFICATIONS

8. Grano is the co-founder and executive director of a training provider that

instructs law enforcement agencies, military units, and security companies in combat

training, arrest and control methods, and other defensive tactics, which includes the

use of tasers.9 Per Grano, both the Department of Defense (“DoD”) and the Inter-

Service Non-Lethal Individual Weapons Instructor Course (“INWIC”) have

recognized him as a subject matter expert on the use of tasers.10 Grano has been

providing training to law enforcement and military officers for at least twenty-five

years.11 As a result, Grano is a qualified expert regarding the appropriateness of the

use of tasers and when and whether or not police officers should be so equipped with

this device. Any questions regarding the specific extent of Grano’s experience with

7
Henlopen Hotel, Inc. v. United Nat’l Ins. Co., 2020 WL 233333, at *2 (Del. Super.
Ct. Jan. 10, 2020) (citing Tumlinson, 81 A.3d at 1270).
8
Marydale, 2022 WL 4394375, at *2 (quoting Norman v. All About Women, P.A.,
193 A.3d 726, 730 (Del. 2018)).
9
Pl.’s Opp’n Br., Ex. E (hereinafter “Grano’s Expert Report”), Feb. 20, 2023 (D.I.
85); id., Ex. F.
10
Pl.’s Opp’n Br., Ex. G (D.I. 85).
11
Id., Ex. F.
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taser instruction goes to the weight of his testimony, not its admissibility.12

RELIABILITY
9. The Unites States Supreme Court in Daubert identified a list of non-

exclusive factors for trial courts to consider in determining the reliability of expert

opinion testimony:

(1) Whether a theory or technique has been tested;
(2) Whether it has been subject to peer review and publication;
(3) Whether a technique had a high known or potential rate of
error and whether there are standards controlling its operation;
and
(4) Whether the theory or technique enjoys general acceptance
within the relevant scientific community.13

10. Given that many fields of expertise are not subject to peer review and

publication, Delaware courts instruct against the rigid application of Daubert factors

to determine reliability of expert evidence.14 As a result, trial courts possess “broad

12
See Rodriguez v. State, 30 A.3d 764, 769-70 (Del. 2011) (“Like expert witnesses
generally, an analyst’s lack of proper training or deficiency in judgment may be
disclosed in cross-examination. By probing Hegman on his particular experience in
tire track and shoeprint analysis, defense counsel challenged his credibility before the
jury and the weight to be given the impression evidence.” (internal citations
omitted)).
13
Bowen v. E.I.DuPont de Nemours & Co., 906 A.2d 787, 794 (Del. 2006) (citing
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-94 (1993)).
14
Smack-Dixon, 2021 WL 3012056, at *5; M & G Polymers USA, LLC v. Carestream
Health, Inc., 2009 WL 3535466, at *6 (Del. Super. Ct. Aug. 5, 2009).
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latitude” in making such determinations.15 “The factors will be applied flexibly

where a proffered witness’s area of expertise is not expected to carry the traditional

indicia of scientific acceptance; however, reliability remains a prerequisite to

admissibility of all expert opinions, whether they are based upon scientific, technical,

or other specialized knowledge.”16

11. Grano’s opinion on whether use of a taser would have prevented

Plaintiff’s injuries is non-scientific. To determine reliability in the non-scientific

opinion context, Delaware courts have looked to whether the “opinions have a

reliable basis in [the expert’s] knowledge and experience” and whether the “report

explains how that knowledge and experience informed his opinions regarding the

case.”17

12. In developing his report, Grano relied upon the complaint, video

evidence, and multiple depositions taken in the case.18 No other supportive materials

were referenced or provided in the report.19 Though the report does not explicitly

15
Perry v. Berkley, 996 A.2d 1262, 1267 (Del. 2010) (citing Gen Motors Corp. v.
Grenier, 981 A.2d 531, 536 (Del. 2009)).
16
M & G Polymers, 2009 WL 3535466, at *6 (internal quotation marks and
citations omitted).
17
Id. at *11; see also State v. Jones, 2003 WL 21519842, at *3 (Del. Super. Ct. July
2, 2013) (“The Court held that handwriting analysis testimony would assist the jury
to further understand the evidence and found the witness to be a skilled person by
training and experience.” (internal quotation marks omitted)).
18
Pl.’s Opp’n Br., Ex. E (D.I. No. 85).
19
See generally id.
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detail his source of knowledge, Grano presumably relied upon his knowledge and

experience in the use of tasers and defensive tactics in reaching his opinion. Grano

explains that a taser’s effect, rendering a subject immobile for a limited period of

time, is an “immeasurable asset” to law enforcement and “results in less officer

injuries[.]”20 Taken together, Grano proffers a reliable basis of knowledge and

experience and explained how his knowledge of tasers informed his ultimate

opinion.21

TESTIMONY WILL ASSIST THE JURY

13. Amtrak further contends that Grano’s expert testimony will not assist

the jury because it has no bearing on “whether Amtrak breached any applicable

standard of care in relation to the issuance of Tasers.”22 As a result, Amtrak asserts

that Grano’s opinion will confuse the issue and mislead the jury. Plaintiff asserts that

under FELA, the jury must decide whether Amtrak failed to provide a safe place to

work for its employees and that Grano’s opinion is relevant to the jury’s

determination of a safe workplace.

20
Id.
21
See e.g., M & G Polymers, 2009 WL 3535466, at *10-11; Jones, 2003 WL
21519842, at *3; see also Blessing v. Williams, 2022 WL 4182534, at *16 (M.D. Fla.
Sept. 13, 2022) (“But the most important test of an experience-qualified non-
scientific expert’s reliability is that the expert must be able to explain how [his]
experience leads to the conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied to the facts.” (internal
quotation marks and citations omitted).
22
Amtrak’s Mot. in Limine ¶ 35, Jan. 23, 2023 (D.I. 75).
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 14. Given the context, subject matter and his qualifications, Grano’s opinion

will assist the jury. Liability under FELA stems from the railroad employer’s duty

to provide a reasonably safe workplace.23 Accordingly, Grano’s opinion will assist

the jury in determining whether Amtrak’s decision not to equip officers with tasers

breached its duty to provide a safe working environment.

15. As a result, the Motion to Exclude Grano’s Testimony is
DENIED.

IT SO ORDERED this 15TH day of June, 2023.

_____________________________
Danielle J. Brennan, Judge

Cc: All parties via Lexis File&Serve

23
Rivera v. Union Pacific R. Co., 378 F.3d 502, 507 (5th Cir. 2004) (“[FELA]
authorizes an injured railroad employee to recover damages from his employer for
injury or death resulting in whole or in part from the [railroad’s] negligence. The
ultimate fact question is whether the railroad exercised reasonable care in creating a
reasonably safe working environment.” (internal quotation marks and citations
omitted)); see also Tufariello v. Long Island R. Co., 458 F.3d 80, 91 (2nd Cir. 2006)
(finding railroad employer’s refusal to provide hearing protection to employees
sufficient to submit case to jury).
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