          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nicole Hooks,                       :
                                    :
             v.                     : No. 946 C.D. 2016
                                    : ARGUED: February 7, 2017
Southeastern Pennsylvania           :
Transportation Authority,           :
                  Appellant         :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE HEARTHWAY                        FILED: August 31, 2017


             The Southeastern Pennsylvania Transportation Authority (SEPTA)
appeals from the April 26, 2016 order of the Court of Common Pleas of
Philadelphia County (trial court), denying SEPTA’s post-trial motions seeking a
new trial.   SEPTA’s appeal is based on a challenge to the admissibility of
testimony by an expert witness on behalf of Nicole Hooks. Discerning no abuse of
discretion, we affirm.


             Hooks was working as an assistant conductor on SEPTA’s
Wilmington train line during the early morning hours of July 5, 2011, when she
was struck in the head and injured by an unruly passenger. Hooks brought suit
against SEPTA for negligence.1 At trial, Hooks called George Frazier as an expert
witness on transportation safety and security.


              Frazier is a security consultant for the transportation industry. The
trial court described Frazier’s qualifications as follows:


              Captain Frazier has spent twenty-four (24) years working
              in transportation security for the AMTRAK Police
              Department, including ten (10) years as AMTRAK’s
              Chief of Police. . . He has approximately two thousand
              (2000) hours of training including specific training in
              areas such as railroad operations, railroad safety,
              management of incidents, criminal investigations, and
              records management. . . He further testified that he had
              specific independent knowledge and experience with the
              Wilmington line from his work with AMTRAK and his
              later work as Director of Public Safety for New Castle
              County, Delaware. . .

(Trial Court Opinion, 8/11/16, at 4) (citations omitted). SEPTA did not object to
Frazier’s qualification as an expert.


              However, SEPTA did object to Frazier’s testimony insofar as it was
based on six interviews of SEPTA conductors. The conductors were referred to
Frazier by Hooks’ counsel. The interviews were not transcribed or documented.
The interviewees were not called as witnesses for Hooks at trial. Outside the
presence of the jury, the trial court conducted a hearing pursuant to Pa.R.E. 104 to



       1
         The Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60, authorizes railroad workers
to sue employers for negligence.


                                              2
determine whether Frazier’s expert testimony, based at least in part on these six
interviews, was admissible.


            At that hearing, Frazier testified that in this case he followed the
methodology typically used by experts in his field of expertise. He acquired and
reviewed the available pleadings and discovery. (Notes of Testimony (N.T.),
12/15/16, at 100-01.) He then conducted interviews “just [to] try to get to the
bottom line on what had happened in terms of that particular incident and to form
an opinion on what the circumstances were that surrounded it.” (N.T., 12/15/16, at
101.) After counsel for Hooks and SEPTA had questioned Frazier, the trial court
engaged in the following exchange:


            THE COURT: Let me just clarify, you said that many
            times you and others in the field rely on deposition
            testimony; is that correct?

            THE WITNESS: Yes.

            THE COURT: But there are times that you and others in
            the field rely on witness interviews?

            THE WITNESS: Yes, Your Honor.

            THE COURT: And you’re not the only one who does
            this; other experts do this as well?

            THE WITNESS: Yes, Your Honor.

            THE COURT: And there was no deposition testimony
            that was available to you in this case; is that correct?

            THE WITNESS: Yes, Your Honor.



                                        3
             THE COURT: Are there other cases that you prepared
             expert reports where there was no deposition testimony
             that was available?

             THE WITNESS: Yes, Your Honor.

             THE COURT: And in those cases, do you also rely upon
             witness interviews that you conduct?

             THE WITNESS: Yes, Your Honor.

             THE COURT: Do other experts in the field when they
             don’t have deposition testimony available also
             customarily rely upon witnesses to interview?

             THE WITNESS: Yes, Your Honor.

(N.T., 12/15/16, at 12-13.)


             SEPTA objected to Frazier’s testimony on the bases that the interview
subjects were not under oath; the interviews were not reduced to writing; and that
the credibility of the interviewees could not be tested. SEPTA also alleged that
Frazier’s expert opinion was based solely on the contents of the challenged
interviews, and that Frazier was simply acting as a conduit for that content. In
response to SEPTA’s objection, the trial court further questioned Frazier:


             THE COURT: In preparing your. . . 14-page report as
             part of your methodology, did you rely exclusively on
             what those approximately six people said to you, or did
             your investigation go beyond just those interviews with
             those six people?

             THE WITNESS: I formed my opinion based on much
             more than those six people.

                                         4
(N.T., 12/15/16, at 120.) Frazier then elaborated on other sources of information
that informed his opinion in this case, including the depositions of Hooks and
SEPTA police and safety personnel, and SEPTA policies and records.


               The trial court overruled SEPTA’s objection to Frazier’s testimony.
However, the trial court did deliver a special instruction2 to the jury immediately
after accepting Frazier as an expert witness:


               Ladies and gentlemen of the jury, before we proceed
               further, let me explain to you that as part of Mr. Frazier’s
               testimony you will be hearing testimony. . . regarding
               statements made to him by various SEPTA employees
               who may or may not be coming in as witnesses to testify
               later in the trial.

               It is important to recognize that these statements
               regarding those SEPTA employees—regarding the
               statements that the SEPTA employees made to Mr.
               Frazier are admitted to you only for a limited purpose,
               and that is to explain the bases or part of the bases of Mr.
               Frazier’s testimony.

               The statements are not admissible and should not be
               considered by you as substantive evidence of the truth
               that they assert.

(N.T., 12/15/16, at 146.)




       2
          “When an expert testifies about the underlying facts and data that support the expert’s
opinion and the evidence would be otherwise inadmissible, the trial judge upon request must, or
on the judge’s own initiative may, instruct the jury to consider the facts and data only to explain
the basis for the expert’s opinion, and not as substantive evidence.” Pa.R.E. 703 cmt.


                                                5
             Frazier testified that, in his opinion based on his experience, training
and all of the information available to him: (1) SEPTA failed to ensure the safety
of its crews; (2) SEPTA failed to adequately train its crew members to deal with
unruly passengers; and (3) SEPTA failed to provide sufficient police or security
coverage in the Wilmington line. At the conclusion of the trial, the jury found in
favor of Hooks on the issue of negligence and awarded her $229,000 in damages.


             On appeal, SEPTA argues that the trial court erred by allowing Frazier
to present his opinion to the jury because it was based on impermissible hearsay
and “lacked the requisite factual underpinnings, independent analysis and
reliability.” (SEPTA’s brief, 11/23/16, at 3.) SEPTA seeks a new trial. However,
this Court will award a new trial on appeal “only if the trial court abused its
discretion or committed an error of law that controlled the outcome of the case.”
Cummings v. State System of Higher Education, 860 A.2d 650, 654 (Pa. Cmwlth.
2004) (citation omitted). “The admission of evidence is committed to the sound
discretion of the trial court and will not be reversed absent an abuse of discretion.”
Commonwealth v. Chamberlain, 731 A.2d 593, 595 (Pa. 1999). “Discretion is
abused when the law is not applied.” Id.


             The boundaries and admissibility of expert testimony are controlled
by Article VII of the Pennsylvania Rules of Evidence. Rule 703 provides as
follows:


             An expert may base an opinion on facts or data in the
             case that the expert has been made aware of or personally
             observed. If experts in the particular field would
             reasonably rely on those kinds of facts or data in forming


                                           6
            an opinion on the subject, they need not be admissible for
            the opinion to be admitted.

Pa.R.E. 703. In applying Rule 703, the Superior Court has held as follows:

            It is well-established that an expert may express an
            opinion which is based on material not in evidence,
            including other expert opinion, where such material is of
            a type customarily relied on by experts in his or her
            profession. Collins v. Cooper, 746 A.2d 615, 618 (Pa.
            Super. 2000); Primavera v. Celotex Corp. . . 608 A.2d
            515 (Pa. Super. 1992). Such material may be disclosed at
            trial even though it might otherwise be hearsay. . . Such
            hearsay is admissible because the expert's reliance on the
            material provides its own indication of the material's
            trustworthiness: “The fact that experts reasonably and
            regularly rely on this type of information merely to
            practice their profession lends strong indicia of reliability
            to source material, when it is presented through a
            qualified expert's eyes.” Primavera, 608 A.2d at 520.

In re D.Y., 34 A.3d 177, 182 (Pa. Super. 2011).


            Though SEPTA complains that the trial court erred by permitting the
jury to hear expert testimony based on inadmissible hearsay, the express language
of Rule 703 and case law permit such expert testimony where “experts in the
particular field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject.” Id. The critical inquiry is not whether the information
underlying an expert’s opinion would be admissible standing alone. Rather, it is
whether the information is of the type that experts in a field reasonably rely upon
when forming opinions.




                                         7
              In In re Adoption of R.K.Y., an expert in child psychology opined that
a mother was unable to safely parent her children. 72 A.3d 669, 673 (Pa. Super.
2013). The expert’s opinion was informed in part by a review of reports of
psycho-sexual evaluations of four children who did not testify at trial. Id. The
expert did not conduct the interviews of the children; the evaluations were
conducted by the expert’s colleagues. Id. The expert testified that “reliance on
interviews when preparing a psycho-sexual evaluation, including interviews
conducted by colleagues, is ‘common practice in our field.’” Id. at 677. The
Superior Court ruled that, under those circumstances, the expert’s reliance on
interviews in forming her opinion “[satisfied] the basic prerequisites for admission
under Rules 703 and 705.” Id. In this case, the trial court accepted Frazier’s
testimony that experts in his field rely on information obtained in interviews when
forming opinions. The trial court did not abuse its discretion in refusing to exclude
Frazier’s testimony on the ground that it was in part based on out-of-court
interviews.


              SEPTA also argues that Frazier’s testimony “lacked the requisite
factual underpinnings, independent analysis and reliability” for expert testimony.
Rule 702 sets forth the criteria for expert testimony:


              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 expert’s scientific, technical, or other specialized
              knowledge is beyond that possessed by the average
              layperson;




                                           8
             (b) the expert’s scientific, technical, or other specialized
             knowledge will help the trier of fact to understand the
             evidence or to determine a fact in issue; and

             (c) the expert’s methodology is generally accepted in the
             relevant field.

Pa.R.E. 702.    SEPTA’s challenge to the “factual underpinnings, independent
analysis and reliability” of Frazier’s testimony relates to the requirement set forth
in Rule 702(c) that an expert’s methodology be generally accepted in the relevant
field. However, Frazier testified to the satisfaction of the trial court that his
methodology was consistent with the methodology of experts in his field, and
SEPTA has not identified any evidence in the record that Frazier’s methodology
was inconsistent with accepted practice in his field.


             Citing Luzerne County Flood Protection Authority v. Reilly, SEPTA
argues that an expert “is not permitted to merely restate another’s conclusions
without espousing his own expertise and judgement.” 825 A.2d 779, 784 (Pa.
Cmwlth. 2004). However, in this case the trial court found that:

             In addition to his knowledge, training, and experience,
             Captain Frazier also relied upon the following: (1)
             records produced by [SEPTA] in discovery, including
             police records for the Wilmington line and [SEPTA’s]
             Passenger Operations Manual; and (2) his review of
             deposition testimony of witnesses such as [Hooks], Ms.
             Deidra Rich from [SEPTA’s] Training Department, and
             Captain Charles Lawson from [SEPTA’s] Police
             Department.

(Trial Court Opinion, 8/11/16, at 4) (citation omitted). The record does not support
SEPTA’s premise that Frazier merely parroted the opinions of others.

                                          9
             In Luzerne County, this Court stated:
             The applicability of the rule permitting experts to express
             opinions relying on extrajudicial data depends on the
             circumstances of the particular case and demands the
             exercise, like the admission of all expert testimony, of the
             sound discretion of the trial court. Where, as here, the
             expert uses several sources to arrive at his or her opinion,
             and has noted the reasonable and ordinary reliance on
             similar sources by experts in the field, and has coupled
             this reliance with personal observation, knowledge and
             experience, we conclude that the expert’s testimony
             should be permitted.

825 A.2d at 784 (citation omitted) (emphasis in original). We cannot conclude that
the trial court abused its discretion in ruling that Frazier’s testimony was
admissible where the record supports the trial court’s conclusion that Frazier relied
on multiple sources of information of the types reasonably relied upon by experts
in his field, and where he also applied his own personal observation, knowledge
and experience in the formulation of his opinion.


             The Superior Court’s discussion in Primavera v. Celotex Corporation
of the role, significance and limits of expert testimony in contemporary litigation is
highly instructive:
             In noting the necessity and value of permitting experts to
             rely on extrajudicial reports and sources, it is important
             to stress that it is actually the testifying expert's opinion
             which is being presented and which is subject to scrutiny,
             cross-examination and credibility determinations. Hence,
             it is often the case, as it was here, that experts are
             questioned concerning whether relied-upon sources are
             “authoritative” or generally accepted, whether the source
             material is truly the type ordinarily relied on by similar

                                          10
            experts, whether independent or further judgment was
            brought to bear on particular source material and whether
            the expert is competent enough to judge the reliability of
            the sources upon which he relied. These are the
            safeguards which assure that the experts' opinions are not
            being offered based on inherently untrustworthy data or
            data which is not commonly used by other professionals.
            If an expert has made faulty assumptions or leaps of
            judgment in relying on certain sources or in forming
            conclusions based on those sources, these issues are the
            proper subject of cross-examination.

            The relative roles of jury and expert in this context have
            been described as follows:

               In a sense, the expert synthesizes the primary source
               material—be it hearsay or not—into properly
               admissible evidence in opinion form. The trier of fact
               is then capable of judging the credibility of the
               witness as it would that of anyone else giving expert
               testimony. This rule respects the functions and
               abilities of both the expert witness and the trier of
               fact, while assuring that the requirement of witness
               confrontation is fulfilled.

            United States v. Sims, 514 F.2d 147, 149 (9th Cir.1975),
            cert. denied 423 U.S. 845, 96 S.Ct. 83, 46 L.Ed.2d 66
            (1975).

            As this court has indicated, the crucial point is that the
            fact-finder be made aware of the bases for the expert's
            ultimate conclusions, including his partial reliance on
            indirect sources. “The adverse party then has the
            opportunity. . . to present its own countervailing facts and
            figures and/or expert testimony to convince the factfinder
            that the weight to be given to the other side's expert
            testimony should be little or none”. In re Glosser Bros.,
            Inc., 382 Pa. Super. 177, 202, 555 A.2d 129, 142 (1989).

608 A.2d 515, 520-21 (Pa. Super. 1992)
                                         11
             In this case, the trial judge had a basis in the record from which to
conclude that Frazier’s testimony was based on data of the type that experts in his
field customarily rely upon. Additionally, SEPTA had the opportunity to challenge
the bases of Frazier’s opinions and offer evidence to rebut Frazier’s testimony. We
find no error here.


             For these reasons, we affirm the trial court’s order.




                                       __________________________________
                                       JULIA K. HEARTHWAY, Judge




                                         12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nicole Hooks,                       :
                                    :
            v.                      : No. 946 C.D. 2016
                                    :
Southeastern Pennsylvania           :
Transportation Authority,           :
                  Appellant         :



                                  ORDER


            AND NOW, this 31st day of August, 2017, the order of the
Philadelphia County Court of Common Pleas is affirmed.




                                    __________________________________
                                    JULIA K. HEARTHWAY, Judge
