Opinion
Case No. 17cv544
10-19-2020
Michael NOTTKE, et al., Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.
For Plaintiff: Charles M. Murray, Joseph A. Galea, Dennis E. Murray, Jr., Murray & Murray, Sandusky, OH. For Defendant: Dennis E. Murray, Jr., T. H. Lyda, Burns White, Pittsburgh, PA.
For Plaintiff: Charles M. Murray, Joseph A. Galea, Dennis E. Murray, Jr., Murray & Murray, Sandusky, OH.
For Defendant: Dennis E. Murray, Jr., T. H. Lyda, Burns White, Pittsburgh, PA.
ORDER
James G. Carr, Sr. U.S. District Judge
This private-nuisance case arises from defendant Norfolk Southern Railway Company's ("Norfolk Southern") operations at its Moorman train classification rail yard in Bellevue, Ohio.
Plaintiffs Michael Nottke and Norman Jacobs (collectively "plaintiffs") own real property adjacent to the Moorman Yard. They allege that Norfolk Southern's operations, expanded in 2015, create extreme noise pollution in the form of continuous high-pitched squeals stemming from the operation of car retarders, even in the dead of night. Car retarders are used as a braking system to slow railcars as they roll down a hump toward their designated track in the train classification yard.
Pending is plaintiffs’ motion in limine to exclude the expert report and testimony of defendant's expert witness, Travis Trader. (Doc. 91). I held a Daubert hearing and ordered post-hearing briefs from the parties. For the following reasons, I deny the motion.
Doc. 91 – Plaintiffs’ Motion in Limine to Exclude the Export Report and Testimony of Travis Trader.
Doc. 99 – Defendant's opposition.
Doc. 101 – Plaintiffs’ reply in support.
Doc. 104 – Defendant's sur-reply.
Background
As discussed in my order granting the defendant's motion in limine to exclude plaintiffs’ expert audiology expert, federal regulations adopted pursuant to the Noise Control Act (NCA) of 1972, 42 U.S.C. §§ 4901 - 4918 (1988), in the 1980s still control the noise limitations from the operation of rail-car retarders. (Doc. 105, pgID 4719).
Norfolk Southern's Moorman Yard that caused plaintiffs’ claims, is known as a "hump yard." It serves to separate the cars from a single train into multiple trains bound for different locations. (Doc. 99-2, pgID 4817).
The railroad uses devices called retarders to slow individual rail cars during the separation process. A locomotive pushes a car up a hump from which either a railroad worker or an automated system subsequently releases it to roll down the hump and shunts it onto separate tracks depending on their destination. See (Doc. 99-2, pgID 4817). On the way down the hump, the cars pass through two sets of retarders. (Id. , pgID 3866).
The Federal Railroad Authority's ("FRA") 1982 Handbook describes the operation of primary and secondary retarders:
The retarders in a hump yard are given different names depending where in the yard they are located. The master retarder, which is an active retarder located a short distance past the crest of the hump, serves as the primary speed control for cars entering the classification area. All cars pass through the master retarder after which they are sent through switches to various groups of tracks.
Before entering a specific track in a group, the car passes through another active retarder called a group retarder where a second speed adjustment can be made. Generally, a master retarder will serve up to six of seven group retarders ....
At Moorman Yard, there are two master retarders after which they are sent to either one of two groups of tracks called classification bowls (referred to as the "North Bowl" and the "South Bowl"). Each classification bowl at Moorman Yard has five group retarders. See (Doc. 87-8, pgID 3194).
(Id. (emphasis omitted)).
The retarders slow train cars by the friction of their metal rails pressing against the cars’ steel wheels. (Doc. 88, pgID 3217-18). The process, referred to as "humping," produces a high-pitched noise referred to as a retarder sound event or "squeal event." 40 C.F.R. § 201.26(a) ; (Doc. 88, pgID 3223-24). The record reflects that between 1.66 and 1.97 cars go through that process, referred to as being "humped," per minute. Plaintiffs direct their complaints to the squeal sound that each car emits when it goes through that process.
EPA Regulations
Where, as here, the applicable law and federal regulations mandate the use of a particular methodology, I must consider whether the expert's technique complied with those requirements. See Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496, 507 (5th Cir. 1999) (superseded by statute on other grounds ) (discussing Noise Control Act).
The applicable EPA regulations, 40 C.F.R. 201, et seq. , set forth emission standards and a technique to measure noise levels to determine compliance with the standards. The car retarder standard states:
[N]o carrier subject to this regulation shall operate retarders that exceed an adjusted average maximum A-weighted sound level of 83 dB at any receiving property measurement location, when measured with fast meter response in accordance with Subpart C of this part.
A "retarder sound" is "a sound which is heard and identified by the observer as that of a retarder, and that causes a sound level meter indicator at fast meter response § 201.1(1) to register an increase of at least 10 decibels above the level observed immediately before hearing the sound." 40 C.F.R. § 201.1(z).
Applicable regulations limit retarder noise levels to "an adjusted average maximum A-weighted sound level of 83 dB at any receiving property measurement location ...." 40 C.F.R. § 201.14.
"The A-weighting criteria is a filtering network that's built into the measuring device that simulates the perception of sound of the human ear." (Doc. 81, pgID 2601). "So, the A-weighting network that's built into the instruments that are used to measure these sounds simulates [human] perception of the sound over that frequency range." (Id. , pgID 2602).
"Maximum Sound Level" means the greatest A-weighted sound level in decibels measured during the designated time interval or during the event, with either fast meter response § 201.1(l) or slow meter response § 201.1(ii) as specified." (Id. , § 201.1(r) ).
Those regulations’ subpart C provides the "necessary parameters and procedures for the measurement of the noise emission levels" prescribed in the standards. 40 C.F.R. § 201.20.
As an initial matter, noise emission measurements require proper equipment. The regulations require the use of "[a] sound level meter or alternate sound level measurement system that meets, as a minimum, all the requirements of American National Standard (ANSI) S1.4-1971 for a Type 1 (or S1A) instrument[.]" 40 C.F.R. § 201.22(a). They further provide, however, that:
Type I refers to the grade of instrument. A type I instrument is a precision instrument intended for accurate sound measurements in the field and laboratory. A type 2 instrument is less precise than type I and is intended for general field use, typically when high frequencies do not dominate. (Doc. 77-1, pgID 2476). Both types of instruments comply with the applicable ANSI standard. (Id. ).
"[i]n the event that a Type 1 (or S1A) instrument is not available for determining non-compliance with this regulation, the measurements may be made with a Type 2 (or S2A), but with the measured levels reduced by the following amount to account for possible measurement instrument errors pertaining to specific measurements and sources: ...
( Id. , § 201.22(a)(201.26) ).
The 1982 Handbook states that the proper correction for Type 2 microphones used to capture retarder squeal events is to reduce the measured sound level by 4db. (Id. , § 201.22(a) Table 1).
The FRA defines a retarder sound as "a sound which is heard and identified by the observer as that of a retarder, and that causes a sound level meter indicator at fast meter response § 201.1(l) to register an increase of at least ten decibels above the level observed immediately before hearing the sound." 40 C.F.R. § 201.1(z).
The 1982 FRA Handbook measures a retarder squeal event as the duration of the retarder squeal between the background noise before and after that event: "Using fast meter response, record and measure the maximum A-weighted sound level during each ... retarder squeal event and the background levels immediately before and after the event." (Doc. 92-1, pgID 4781).
The 2009 FRA Handbook further explains:
It is important to keep in mind that a lot of noise data can be collected with retarder noise measurements, since a retarder sound is not an impact and may last for several seconds during which additional retarders may also be activated and increase the overall sound. As such, it is very important to properly identify the LAFmx [the maximum A-weighted sound] for the entire retarder "event."
(Doc. 71-4, pgID 3696).
The Daubert Standard
The proponent of expert testimony must establish admissibility by a preponderance of proof. Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 592 n.10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Federal Rule of Evidence 702 governs the admissibility of expert testimony. It provides:
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 will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
In short, the report must "rest[ ] on a reliable foundation and [be] relevant to the task at hand." Daubert, supra, 509 U.S. at 597, 113 S.Ct. 2786. When determining reliability, a district court should consider "whether the reasoning or methodology underlying the testimony is scientifically valid[,]" id. at 592-93, 113 S.Ct. 2786, rather than on "subjective belief or unsupported speculation," id. at 590, 113 S.Ct. 2786.
While there is no "definitive checklist or test," the Supreme Court has set forth a number of factors that generally "bear on the inquiry." Id. at 593, 113 S.Ct. 2786. These factors include "whether the theory or technique in question ‘can be (and has been) tested,’ whether it ‘has been subjected to peer review and publication,’ whether it has a ‘known or potential rate of error,’ and finally, whether the theory or technique enjoys general acceptance in the relevant scientific community." Best v. Lowe's Home Ctrs., Inc. , 563 F.3d 171, 177 (6th Cir. 2009) (quoting Daubert, supra , 509 U.S. at 594, 113 S.Ct. 2786 ).
The inquiry is flexible and its "focus ... must be solely on principles and methodology, not on the conclusions that the [report] generate[s]." Daubert, supra , 509 U.S. at 595, 113 S.Ct. 2786. District courts have leeway to determine whether expert testimony is reliable, and I have the same broad latitude in how I make that determination. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141-42, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
Discussion
A. Plaintiffs’ "One-Sound-Per-Car" Argument
Plaintiffs argue that Mr. Trader's analysis is unreliable because "he acknowledged that he counted the loudest sound per car, regardless of whether the retarder noise emitted for that car rose and fell more than 10dB, and regardless of whether the retarder activation on a [car] going through the retarder made multiple noises which rose and fell by more than 10db." (Doc 91, PgID 3497). Plaintiffs note that a car has eight wheels that pass through the retarders one at a time. (Id. , pgID 3498). They contend that Mr. Trader should have included in his calculation of the average maximum A-weighted sound level for the Moorman Yard each sound during a single squeal event that rose more than 10db above the background sounds. (Id. ). That argument is meritless as it rests entirely on semantics.
As set out above, a retarder squeal event is comprised of sounds caused by a train car when it passes through the two sets of retarders. A retarder squeal event has a duration of several seconds. (Doc. 88, pgID 3221-22). Mr. Trader did not say that he only measured one sound per car; he said that he only used one maximum sound each car emitted while passing through the two retarders in calculating the adjusted average maximum A-weighted sound level for squeal events at that trainyard. See (Id. , pgID 3220, 3221-24).
The regulations required Mr. Trader to record the "greatest A-weighted sound level in decibels measured during the designated time interval or during the event ...." 40 C.F.R. § 201.1(r). Because the railroad workers release one car from the top of the hump at a time, (Doc. 81, pgID 2733-34), Mr. Trader's statement that he recorded one sound per car was simply a short-hand reference to recording one maximum level for each squeal event.
The Handbook and regulations required the user to record the single maximum level for each retarder squeal event—each time a car travelled down the hump and through the retarders—as Mr. Trader did. The plaintiffs’ proposed methodology, which would count each individual sound level increase or decrease during an event that changed the sound level by 10db, is contrary to those requirements.
Plaintiffs contend that Norfolk Southern's expert, Alan Misiaszek, presented to critique plaintiffs’ proposed expert witness, disagreed with Mr. Trader's method of recording "one sound per car" because Mr. Trader was required to "count" each rise or fall of 10db. (Doc. 91, pgID 3497-99). The colloquy plaintiffs cite was vague at best. See (Doc. 101, pgID 5425-26 (quoting Doc. 81, pgID 2736-37)). In contrast, Mr. Misiaszek clearly confirmed that calculation of the adjusted average maximum A-weighted sound level includes only the maximum sound level recorded during each retarder squeal event. (Doc. 99-2, pgID 4812-13)
Plaintiffs’ one-sound-per-car argument fails.
B. Type 2 Sound-Level Meter
Plaintiffs argue that Mr. Trader's analysis is unreliable because he used a Type 2 sound-level meter rather than a Type 1. (Doc. 99, pgID 3499-501). They argue that 40 C.F.R. § 201.22(a) states that a Type 1 meter "must be used." (Id. , pgID 3499-500). The same regulation goes on to state, however, that:
In the event that a Type 1 (or S1A) instrument is not available for determining non-compliance with this regulation,
the measurements may be made with a Type 2 (or S2A), but with the measured levels reduced by the following amount to account for possible measurement instrument errors pertaining to specific measurements and sources:
The regulation then instructs the tester, if using a Type 2 instrument, to reduce the recorded decibel level by 4db. (Id. Table 1).
Plaintiffs assert that the FRA wrote the regulation at a time when Type 1 meters were scarce, and that now that Type 1 meters are readily available, it is impermissible to use a Type 2 device. (Doc. 91, pgID 3500). Regardless of the availability of Type I sound meters, the FRA has not seen fit to remove the express authorization and instructions regarding how to adjust for a Type 2 meter from the regulation. Neither has ANSI adjusted its standard to exclude Type 2 meters.
More importantly, for Daubert purposes, the fact the regulation contains that authorization and instructions defeats the argument that Mr. Trader's analysis is not "the product of reliable principles and methods," Fed. R. Evid 702.
Plaintiffs also complain that the 4db reduction the regulations require for Type 2 meters is excessive because the correct adjustment should be only 2 or 3db. (Doc. 91, pgID 3500 & n.3). That, at best, is a jury argument to undermine the defendant's expert witness’ credibility. It does not render his methodology too unreliable to be admissible.
C. Norfolk Southern's Knowledge of Trader's Testing
Plaintiffs next contend that Mr. Trader's testing results are unreliable because Norfolk Southern knew when he was conducting his testing. (Id. , pgID 3501-02). They speculate that Norfolk Southern may have reduced its operations to minimize the decibel level they produced. (Id. ). Plaintiffs provide no evidence that Norfolk Southern did so.
In response, Norfolk Southern presents evidence that its operations on the testing dates were consistent with its normal day-to-day operations. (Doc. 99, pgID 4794); (Doc. 99-9, pgID 5021, 5023-5288). It also argues that notifying a railroad yard's management that a person will be walking about in or near the yard is a prudent safety precaution. (Doc. 99, pgID 4796-97).
Once again, plaintiffs’ speculation that Norfolk Southern may have rigged the test by reducing its operations while Mr. Trader was on site is a jury argument. Plaintiffs have not shown that Mr. Trader's conduct in notifying the Moorman Yard made his analysis the product of unreliable principles or methods.
D. The "Day/Night" Issue
Plaintiffs next contend that Mr. Trader's testimony must be excluded because he used the adjusted average maximum A-weighted sound level in his analysis rather than the "day-night" sound levels. (Doc. 91, pgID 3502-06).
The day-night sound level methodology adds 10db to sound levels measured between 10:00 p.m. and 6:00 a.m. (Id. , pgID 3503) (citing 40 CFR § 201.1(g) ). The 1974 EPA document that set out the day-night sound level measure specified that it was informational and had no legally binding force:
Office of Noise Abatement and Control, U.S. Environmental Protection Agency, Pub. No. 550/9-74-004, Levels of Environmental Noise Requisite to Protect the Public Health and Welfare with an Adequate Margin of Safety (1974).
There was a great deal of concern during the preparation of this document that the levels identified would be mistakenly
interpreted as Federal noise standards. The information contained in this document should not be so interpreted. The general purpose of this document is rather to discuss environmental noise levels requisite for the protection of public health and welfare without consideration of those elements necessary to an actual rule-making .... Instead, the levels identified here will provide State and local governments as well as the Federal Government and the private section with an informational point of departure for the purpose of decision-making.
(Doc. 99-11, pgID 5296); see also (id. , pgID 5294 (cover of report bearing the legend: "[t]his document ... does not constitute a standard, specification, or regulation.")).
Plaintiffs rely on the fact that the EPA regulations and the FRA 1982 Handbook contain definitions of the term "Day-Night Sound Level," 40 C.F.R. § 201.1(g) ; (Doc. 91 pgID 3503). They also note the regulations’ definition of "Energy Average Level" provides a calculation for which "[t]he levels may be of any consistent type, e.g. , maximum sound levels, sound exposure levels and day-night sound levels." (Doc. 91, pgID 3503) (quoting 40 C.F.R. § 201.1(g) ).
The specific provision governing the limitation of retarder noise, however, sets a limit of "an adjusted average maximum A-weighted sound level of 83db at any receiving property ...." 40 C.F.R. § 201.14 (emphasis added). And, the regulation instructs the user on how to measure the adjusted average maximum A-weighted sound level: "[t]he energy average level for the measured retarder sounds must be calculated to determine the value of the average maximum A-weighted sound level." Id. § 201.26.
It is a well-settled rule of interpretation that "a specific provision ... controls ones of more general application." Covenant Med. Ctr., Inc. v. Sebelius , 424 F. App'x 434, 437 (6th Cir. 2011) (quoting Bloate v. United States , 559 U.S. 196, 207, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010) ).
Moreover, the 2009 Handbook contains no discussion of a day-night sound level. Instead, it provides two methods for measuring sound levels depending on whether they are heard during "randomly occurring events" or "coordinated and closely monitored events." (Doc. 96-4, pgID 4005). For either type event, the regulation directs the user to measure the maximum A-weighted sound level during each event. (Id. ).
Regardless of plaintiffs’ assertion that using day-night sound levels in the calculation would better protect the public, (Doc. 91, pgID 3503), it is simply untenable to argue that Mr. Trader's testimony is too unreliable to be admitted because he used the measurement methodology for retarder sounds that is specified in the regulations.
It is, therefore,
ORDERED THAT
Plaintiffs’ motion be, and hereby is, denied.
So ordered.