                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


HOWARD W. FRICK,                            )
                                            )
                   Plaintiff,               )
                                            )
              v.                            )       Civ. Action No. 11-0357 (ABJ)
                                            )
AMTRAK.,                                    )
                                            )
               Defendant.                   )
__________________________________          )


                                MEMORANDUM OPINION

       In this case, plaintiff sued the National Railroad Passenger Corporation (“Amtrak”) for

injuries he allegedly suffered in January 2008 while traveling on an Amtrak train bound for

Chicago from the District of Columbia. Am Compl. [Dkt. # 24] at 1. Claiming that Amtrak

breached “a duty of care to ensure [that he, as a passenger,] was not injured by Amtrak’s

negligence,” id. ¶ 2, plaintiff seeks $1.5 million in actual and punitive damages. Id. ¶ 6.

Specifically he claims that “Amtrak breached its duty of care to Frick because … while Frick

was walking, exercising due caution and reasonable care, into the lounge car of AMTRAC train

number 29, without warning or reasonable notice, the train suddenly and violently lurched

propelling Frick forward.” Am. Compl ¶ 3.

       Following a period of discovery, Amtrak moved for summary judgment under Rule 56 of

the Federal Rules of Civil Procedure. Nat’l R.R. Passenger Corp’s Mot. for Summ. J. [Dkt. #

42]. Plaintiff opposed the motion [Dkt. # 43], and defendant has replied [Dkt. # 44]. Since

plaintiff has produced no evidence on the applicable standard of care as District of Columbia law




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requires under these circumstances, the Court will grant defendant’s motion and enter judgment

accordingly.

I. BACKGROUND

       Plaintiff states in his declaration that on January 23, 2008, he purchased an Amtrak ticket

at Union Station in the District for a trip to St. Louis, Missouri, via Chicago, Illinois, which he

had frequently taken over the past 23 years. Pl.’s Decl. [Dkt. # 43-1] ¶¶ 1, 3. The train left

“about two hours late [and] seemed to be moving faster than usual than what [plaintiff had]

observed over the many years” of his travels. Id. Around midnight, plaintiff “decided to walk to

the lounge car where [he] routinely obtained a more comfortable seat and some refreshments.”

He notes that he “walked carefully because [he] kn[e]w trains can bump along causing someone

to lose their balance.” Id. ¶ 4. Plaintiff “sensed nothing unusual about the flooring” as he

walked to the lounge car, but he states that once he was inside that car, “suddenly and without

warning the floor of the train lifted me high up into the air, over lounge chairs, the top of which

were approximately 4 feet from the floor, propelling me into the side of the train, and then

bouncing me back to the floor.” Id. Plaintiff acknowledges completing an Amtrak incident

report on that date in which he stated, “Train lurched – knocked feet out from under me. Fell

over chairs onto floor on right side…. Fell on left wrist.” Def.’s Mem. of P. & A. [Dkt. # 42-2],

Ex. 3. But he adds now that “[a]t the time, I was stunned . . . and [] dazed by the shock of what

happened. . . . Looking back at what happened, as I reviewed my statement; I realize that I could

not have simply fallen over a chair, but flew over the chair with sudden and violent force

sufficient to break my wrist and injure the side of my body.” Pl.’s Decl. ¶ 5. He opines that

“[s]uch an event does not occur absen[t] the failure on the part of someone in control of the train

to proceed with reasonable caution under the circumstances….” Id. ¶ 4.



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       In his complaint, plaintiff alleges that the train was “operat[ing] . . . at speeds excessive

under the circumstances [and] in an erratic manner . . . ,” Am. Compl. ¶ 4, and that as a “result of

the train’s sudden and violent lurch,” he “sustained serious[] and permanent physical injury to

his back and the lumbar area of his spine.” Id. ¶ 5. In addition, plaintiff alleges that he suffered

“injury to his right hip and right wrist and a broken small bone of his left wrist.” Id.

       Plaintiff took no depositions and has provided the court with no independent factual

information concerning the operation of the train that evening. In a declaration supplied by the

defense, the train operator states that he is “required to comply with and do comply with the

published speed restrictions that the Federal Railroad Administration (“FRA”) imposes on all rail

traffic in the United States,” and that “[o]n January 23, 2008, I was aware of and complied with

all applicable FRA speed restrictions while operating” the Amtrak train at issue. Def.’s Ex. 4

(Decl. of Anthony Depalma [Dkt. 42-2] ¶¶ 4-5).

II. ANALYSIS

A. Summary Judgment Standard

       Summary judgment is granted “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The moving party must support the assertion that no facts are in dispute by “citing to

particular parts of materials in the record, including . . . affidavits.” Fed. R. Civ. P. 56(c)(1)(A).

The non-moving party has the burden “to produce admissible evidence establishing a genuine

issue of material fact.” Bush v. District of Columbia, 595 F.3d 384, 386 (D.C. Cir. 2010), citing

Celotex v. Catrett, 477 U.S. 317, 324 (1986). The Supreme Court defines material facts as

“those that might affect the outcome of the suit under governing law,” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute over a material fact is genuine “if the



                                                  3
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

However, if the nonmoving party fails to “make a sufficient showing on an essential element of

[his] case with respect to which [he] has the burden of proof,” then the moving party is entitled

to judgment as a matter of law. Celotex, 477 U.S. at 323.

B. Expert Witness Requirement

        “Under District of Columbia law, the plaintiff in a negligence action bears the burden of

establishing three elements: ‘an applicable standard of care, a deviation from that standard by the

defendant, and injury resulting from that deviation.’ ” Robinson v. WMATA, 941 F. Supp. 2d 61,

67 (D.D.C. 2013), quoting Scott v. Dist. of Columbia, 101 F.3d 748, 757 (D.C. Cir. 1996) (other

citations omitted). A plaintiff’s “[f]ailure to prove a standard of care is [] fatal to a negligence

claim,” Scott, 101 F.3d at 757, and expert testimony on that element of the claim is required

when “the alleged negligent act is not within the realm of common knowledge and every day

experience.” Id. (citations and internal quotation marks omitted).

        Plaintiff does not dispute (1) that he has not designated an expert witness and (2) that he

has not produced evidence on the speed of the train and/or the conditions of the track at the time

of the incident. See Def.’s Statement of Undisputed Material Facts in Supp. of Nat’l R.R.

Passenger Corp.’s Mot. for Summ. J. [Dkt. # 42-1] ¶¶ 2, 3. Instead, plaintiff relies upon his own

observations, and he “suggests there is no need for a battle of professional witness [and that] the

available relevant evidence eliminates the need [for] opinion testimony.” Pl.’s Opp’n at 2. He

then argues that the facts are so “clear and unambiguous” that the “doctrine of res ipsa loquitur

is quite appropriate here.” 1 Id. at 2, 6.



1
     “The doctrine of res ipsa loquitur allows an inference of negligence where, although direct
evidence of negligence is lacking, an event giving rise to a negligence claim is of a type that does
not normally occur in the absence of negligence.” Cobell v. Norton, 355 F. Supp. 2d 531, 541
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       But “[t]o rely on the doctrine of res ipsa loquitur, plaintiff must establish that “(1) [the

occurrence is] of the kind which ordinarily does not occur in the absence of someone's

negligence; (2) it must be caused by an agency or instrumentality within the control (exclusive or

joint) of the defendant; (3) it must not have been due to any voluntary action or contribution on

the part of the plaintiff.” Nichols ex re. Hamilton v. Greater Southeast Comm'y Hosp., 382 F.

Supp. 2d 109, 115 (D.D.C. 2005), quoting Hailey v. Otis Elevator Co., 636 A.2d 426, 428

(D.C.1994). 2 Plaintiff cannot make that showing in this situation.

       Plaintiff hypothesizes that his injuries resulted from the train’s “excessive” speed.

Defendant has countered with evidence indicating that the train operator was in compliance with

the FRA’s “published speed restrictions” governing “all rail traffic in the United States.”

Depalma Decl. ¶¶ 4-5. Since “the standards governing the operation of [train operators] are

distinctly related to an occupation that is ‘beyond the ken of the average layperson.’ ” Robinson,

941 F. Supp. 2d at 67, quoting Briggs v. WMATA, 481 F.3d 839, 845 (D.C. Cir. 2007), this case

presents a clear situation where an expert is required to establish “the national standard of care.”

Id.; see Briggs, 181 F.3d at 845-46 (“[E]xpert testimony is routinely required in negligence cases

[involving] issues of safety . . . .,” citing Varner v. District of Columbia, 891 A.2d 260, 267

(D.C. 2006) (internal quotation marks omitted); see also Briggs, 181 F.3d at 845 (listing

negligence cases where the D.C. Court of Appeals has required expert testimony despite

circumstances that “on first blush, appear to be within the realm of common knowledge”).

Consequently, plaintiff’s failure to proffer the testimony of an expert witness is “fatal” to his

claim. Scott, 101 F.3d at 757.

(D.D.C. 2005), citing Jesionowski v. Boston & M.R. R., 329 U.S. 452, 456 (1947).
2
     Nichols held that “the doctrine of res ipsa loquitur is not available as a substitute for expert
testimony on the applicable standard of care" in a medical malpractice case. Id.

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       At bottom, plaintiff’s opposition to the motion for summary judgment sounds a simple

theme: I was hurt in unusual circumstances on the train, so it must have been Amtrak’s fault.

Notwithstanding the sincerity and vigor with which this view is advanced, and even assuming

that plaintiff is an experienced train passenger who was actually and painfully injured, he still

bears the burden of proving that the carrier owed him an obligation to live up to a particular

standard of care and failed to do so, and that this negligence was the cause of the injury. Since

even after an extensive period of discovery, plaintiff has produced no evidence on these points

beyond his conviction that something must have gone wrong, the defendant’s motion for

summary judgment must be granted.

                                        CONCLUSION

       In this negligence action predicated on the conduct of an Amtrak train operator, the Court

concludes that plaintiff’s failure to proffer the testimony of an expert witness on the applicable

standard of care entitles defendant to judgment as a matter of law. A separate final order

accompanies this Memorandum Opinion.




                                             AMY BERMAN JACKSON
                                             United States District Judge
Dated: July 3, 2014




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