IN THE SUPREME COURT OF PENNSYLVANIA

No. ________

Albert Lockley,

Plaintiff-Respondent,v.

CSX Transportation, Inc.,

Defendant-Petitioner.

CSX TRANSPORTATION, INC.’S

PETITION FOR ALLOWANCE OF APPEAL

Appeal from the Opinion of the Superior Court of Pennsylvania in No. 1292 EDA 2009, entered September 13, 2010, affirming the Judgment of the Court of Common Pleas of Philadelphia

County July Term 2006, No. 003999, entered on March 30, 2009

Ira Podheiser (Pa. ID No. 46973)T.H. Lyda (Pa. ID No. 75629)Stephen A. Hall (Pa. ID No. 84046)BURNS WHITE LLCFour Northshore Center106 Isabella StreetPittsburgh, PA 15212(412) 995-3000

Evan M. TagerAndrew TauberMAYER BROWN LLP1999 K Street, N.W.Washington, DC 20006(202) 263-3000

Counsel for Petitioner CSX Transportation, Inc.

TABLE OF CONTENTS

Page(s)

i

TABLE OF AUTHORITIES ..................................................................................................... ii

INTRODUCTION..................................................................................................................... 1

REFERENCE TO OPINIONS BELOW .................................................................................... 3

TEXT OF THE ORDER IN QUESTION................................................................................... 3

STATEMENT OF THE QUESTIONS PRESENTED................................................................ 3

STATEMENT OF THE CASE.................................................................................................. 4

A. Procedural History.............................................................................................. 4

B. Statement of Facts .............................................................................................. 5

1. Pretrial Motions ...................................................................................... 6

2. Motion in Limine .................................................................................... 7

3. Evidence Offered at Trial........................................................................ 9

a. Evidence Attributing Plaintiff’s Injury To Whiplash.................... 9

b. Evidence of Allegedly Similar Claims ....................................... 13

c. Evidence of Plaintiff’s Alleged Post-Surgical Condition............ 14

4. Verdict.................................................................................................. 17

C. The Opinion Below .......................................................................................... 17

REASONS FOR ALLOWING THE APPEAL ........................................................................ 21

I. HOLDING ACCESS TO MEDICAL RECORDS TO BE AN ADEQUATE SUBSTITUTE FOR DEPOSITIONS AND AN INDEPENDENT MEDICAL EXAMINATION IS UNFAIR, UNSUPPORTED BY THIS COURT’S PRECEDENTS, AND CONTRARY TO DECISIONS IN OTHER JURISDICTIONS. ....................................................................................................... 22

II. ADMITTING EVIDENCE OF OTHER CLAIMS WITHOUT REQUIRING PROOF THAT THOSE CLAIMS AROSE FROM SUBSTANTIALLY SIMILAR INJURIES INCURRED UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES UNFAIRLY EXPOSES DEFENDANTS TO IRRELEVANT, PREJUDICIAL EVIDENCE.............................................................. 28

CONCLUSION ....................................................................................................................... 33

CERTIFICATE OF SERVICE ................................................................................................ 35

APPENDIX............................................................................................................................. 36

ii

TABLE OF AUTHORITIES

Page(s)CASES

Adams v. Teck Cominco Alaska, Inc.,2005 WL 846202 (D. Alaska 2005) .................................................................................... 22

Anderson v. Bernhard Realty Sales Co.,329 A.2d 852, 230 Pa. Super. 21 (1974).............................................................................. 23

Bruton v. United States,391 U.S. 123 (1968).......................................................................................................30, 33

Calderon v. Reederei Claus-Peter Offen GmbH,258 F.R.D. 523 (S.D. Fla. 2009) ......................................................................................... 27

Doe v. Dist. of Columbia,229 F.R.D. 24 (D.D.C. 2005) .........................................................................................24, 25

Dominique v. Yellow Freight Sys., Inc.,642 So. 2d 594 (Fla. Dist. Ct. App. 1994) ........................................................................... 27

Duncan v. Upjohn Co.,155 F.R.D. 23 (D. Conn. 1994) ........................................................................................... 26

Edson v. Liberty Mut. Ins. Co.,2002 WL 31946902 (N.D. Cal. 2002) ............................................................................24, 25

Eigen v. Textron Lycoming Reciprocating Engine Div.,874 A.2d 1179, 2005 PA Super. 141 (2005)........................................................................ 22

Firoz v. Kolaranda,2007 WL 685447 (N.J. Super. Ct. App. Div. 2007) (per curiam)......................................... 24

Fla. Emergency Physicians-Kang & Assocs., M.D., P.A. v. Parker,800 So. 2d 631 (Fla. Dist. Ct. App. 2001) ........................................................................... 26

Hall v. Clifton Precision,150 F.R.D. 525 (E.D. Pa. 1993) .......................................................................................... 22

Hutchinson v. Penske Truck Leasing Co.,876 A.2d 978, 2005 PA Super. 179 (2005), aff’d, 922 A.2d 890, 592 Pa. 38 (2007) ..........................................................................29, 33

Lahr v. Fulbright & Jaworski, L.L.P.,164 F.R.D. 196 (N.D. Tex. 1995), aff’d, 164 F.R.D. 204 (N.D. Tex. 1996)............................................................................... 26

TABLE OF AUTHORITIES (cont'd)

Page(s)

iii

Looney v. Nat’l R.R. Passenger Corp.,142 F.R.D. 264 (D. Mass. 1992) ......................................................................................... 23

Lynch v. McStome & Lincoln Plaza Assoc.,548 A.2d 1276, 378 Pa. Super. 430 (1988).......................................................................... 29

Mt. Olivet Tabernacle Church v. Edwin L. Wiegand Div.,781 A.2d 1263, 2001 PA Super. 232 (2001), aff’d, 811 A.2d 565, 571 Pa. 60 (2002) ............................................................................... 28

Nissley v. Penn. R.R.,259 A.2d 451, 435 Pa. 503 (1969)....................................................................................... 27

Paden v. Baker Concrete Constr., Inc.,658 A.2d 341, 540 Pa. 409 (1995)............................................................................21, 22, 27

Palmer v. Youth Opportunities Upheld, Inc.,2004 WL 2341571 (Mass. Super. 2004).............................................................................. 26

Pena v. Women’s Outreach Network, Inc.,2005 WL 6238553 (N.Y. Sup. Ct. 2005), aff’d, 824 N.Y.S.2d 3 (N.Y. App. Div. 2006) ...................................................................... 24

Polcaro v. Daniels,2007 WL 1299159 (Conn. Super. Ct. 2007) ........................................................................ 27

Ragge v. MCA/Universal Studios,165 F.R.D. 605 (C.D. Cal. 1995)......................................................................................... 23

Romano v. II Morrow, Inc.,173 F.R.D. 271 (D. Or. 1997) ............................................................................................. 26

Royal Caribbean Cruises, Ltd. v. Cox,974 So. 2d 462 (Fla. Dist. Ct. App. 2008) ......................................................................25, 26

Spino v. John S. Tilley Ladder Co.,671 A.2d 726, 448 Pa. Super. 327 (1996), aff’d, 696 A.2d 1169, 548 Pa. 286 (1997).......................................................................28, 30

Taylor v. Morris,62 S.W.3d 377 (Ky. 2001) .................................................................................................. 26

Tomlin v. Holecek,150 F.R.D. 628 (D. Minn. 1993) ......................................................................................... 23

TABLE OF AUTHORITIES (cont'd)

Page(s)

iv

Valentine v. Acme Markets, Inc.,687 A.2d 1157, 455 PA Super. 256 (1997)...............................................................20, 28, 29

Vopelak v. Williams,42 F.R.D. 387 (N.D. Ohio 1967)......................................................................................... 25

Wegeng v. Flowers,753 S.W.2d 306 (Mo. Ct. App. 1988).................................................................................. 24

STATUTES, REGULATIONS AND RULES

49 C.F.R. § 229.119(a) ............................................................................................................. 19

45 U.S.C. § 53.......................................................................................................................... 17

Fed. R. Civ. P. 30(a)(1)............................................................................................................. 25

Fed. R. Civ. P. 35 ..................................................................................................................... 25

Fed. R. Evid. 402 cmt. .............................................................................................................. 29

Pa. R. App. P. 1925(a) ................................................................................................................ 4

Pa. R. App. P. 1925(b)................................................................................................................ 4

Pa. R. Civ. P. 4001(c) ................................................................................................ 2, 22, 25, 27

Pa. R. Civ. P. 4007.1(a) ............................................................................................................ 25

Pa. R. Civ. P. 4010 ................................................................................................................... 25

Pa. R. Civ. P. 4010(a)(2).....................................................................................................passim

Pa. R. Civ. P. 4019(a)(1)(iv) ..................................................................................................... 23

Pa. R. Evid. 402......................................................................................................... 2, 21, 29, 33

MISCELLANEOUS

2 TEX. PRAC. GUIDE: DISC. § 9:3 (2010) ................................................................................... 23

7 MOORE’S FEDERAL PRACTICE § 30.41 (3d ed. 2009)............................................................... 22

8A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, & Richard L. Marcus, FEDERAL PRACTICE AND PROCEDURE § 2234 (3d ed. 2009) ................................................. 25

Kristyn S. Appleby & Joanne Tarver, MED. RECORDS REV. § 10.4 (2010) ................................ 23

TABLE OF AUTHORITIES (cont'd)

Page(s)

v

Erica Beecher-Monas, Reality Bites: The Illusion of Science in Bite-Mark Evidence, 30 CARDOZO L. REV. 1369 (2009)....................................................................... 30

Fleming James, Jr., CIVIL PROCEDURE (1965)........................................................................... 27

David D. Siegel, N.Y. PRAC. § 350 (4th ed. 2010) .................................................................... 23

James Bradley Thayer, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW (1898).............................................................................................. 29

1

INTRODUCTION

This is a personal injury case brought by plaintiff Albert Lockley against his former em-

ployer, defendant CSX Transportation, Inc. (“CSXT”). CSXT is a freight railroad for whom

Lockley worked as a yard engineer. Although the parties dispute both the cause and the conse-

quences of plaintiff’s injury, there is no dispute that plaintiff injured his neck. Prior to trial,

plaintiff had surgery to repair his injury, a herniated cervical disk. At trial, plaintiff presented

testimony that his underlying injury was the result of whiplash he allegedly experienced when

coupling rail cars. Plaintiff also presented testimony that the surgery he underwent not only

failed to restore his prior health but actually left him in greater pain than before. CSXT was

found negligent and plaintiff was awarded $2,000,000 in damages—damages that the jury was

instructed could include pain and suffering. The trial court denied CSXT’s motion for post-trial

relief, and a divided panel of the Superior Court affirmed.

This petition raises two important and recurring issues in personal injury law.

The first issue concerns a defendant’s right to post-surgical discovery. CSXT requested

an opportunity to depose plaintiff and his surgeon, and to conduct an independent medical ex-

amination of plaintiff, after plaintiff’s surgery. The trial court denied CSXT’s request. Although

the Superior Court unanimously found that there was “no legitimate basis upon which to deny”

CSXT’s request, the court, over Judge Freedberg’s dissent, denied CSXT relief on the ground

that the concededly erroneous denial of post-surgical discovery caused CSXT no prejudice. As

noted in the dissent, that result rests on the majority’s belief that access to a plaintiff’s medical

records is an adequate substitute for depositions and an independent medical examination. That

view, which was rejected by Judge Freedberg and is in conflict with decisions of other jurisdic-

tions, unfairly advantages plaintiffs by depriving personal injury defendants of the discovery ne-

cessary to test and rebut plaintiffs’ medical claims. This Court, which has never directly ad-

2

dressed whether access to medical records is an adequate substitute for depositions and an inde-

pendent medical examination, should review the decision below to ensure that Rules 4001(c) and

4010(a)(2) of the Pennsylvania Rules of Civil Procedure are not impaired and that personal in-

jury trials take place on a level playing field.

The second issue raised by this petition concerns the admissibility of so-called “similar

claims” evidence. To prove that CSXT had notice of the allegedly dangerous conditions that

supposedly caused his injury, plaintiff introduced evidence that 59 purportedly similar claims

had previously been filed against CSXT. CSXT objected to the evidence’s introduction because

plaintiff offered no proof that the injuries giving rise to those claims were substantially similar to

his injury and no proof that they had occurred under circumstances substantially similar to those

plaintiff experienced. Rather than require plaintiff, as the proponent of the evidence, to establish

that the other claims were in fact substantially similar to his, the trial court erroneously placed

the burden on CSXT to prove dissimilarity. The trial court then compounded its error by admit-

ting the evidence notwithstanding CSXT’s showing that the other claims were indeed dissimilar.

Despite this, the Superior Court held that the trial court had not abused its discretion in admitting

the evidence. Although the Superior Court paid lip service to the appropriate standard (albeit

one that this Court has never specifically endorsed), the Superior Court applied it in a manner

that renders that standard effectively meaningless. If the decision below, which is to be pub-

lished, is allowed to stand, personal injury plaintiffs will henceforth be able to introduce irrele-

vant and unfairly prejudicial evidence of supposedly “similar” claims that in fact are not similar

at all. This Court should exercise its supervisory power to ensure that the relevance requirement

imposed by Rule 402 of the Pennsylvania Rules of Evidence does not become a dead letter.

3

REFERENCE TO OPINIONS BELOW

The Superior Court’s September 13, 2010 Opinion is reported at 2010 PA Super. 167,

___ A.2d ___, 2010 WL 3529809, and is appended as Exhibit 1 hereto. The Court of Common

Pleas’ March 30, 2009 Memorandum in Support of Order Denying All of Defendant’s Motions

for New Trial and/or Judgment Notwithstanding the Verdict is not reported; it is appended as

Exhibit 2 hereto. The Court of Common Pleas’ March 30, 2009 Memorandum in Support of

Verdict and Judgment Order is reported at 2009 WL 2055272 and is appended as Exhibit 3 here-

to. The Court of Common Pleas’ June 5, 2009 Opinion to the Honorable Superior Court is not

reported; it is appended as Exhibit 4 hereto.

TEXT OF THE ORDER IN QUESTION

The Superior Court’s opinion states in conclusion: “For the above-stated reasons, we af-

firm the judgment entered in favor of Plaintiff. Judgment affirmed.” App.21.

STATEMENT OF THE QUESTIONS PRESENTED

1. Whether the Superior Court, having found that the trial court had “no legitimate

basis upon which to deny” the defendant’s request for post-surgical discovery, erred when it

held, over Judge Freedberg’s dissent, that the defendant suffered no prejudice from the denial of

that discovery, a holding that rests on the Superior Court’s view that access to a plaintiff’s medi-

cal records is an adequate substitute for depositions and an independent medical examination, a

view that Judge Freedberg squarely rejected, that this Court has never directly addressed, and

that is in conflict with decisions from other jurisdictions.

2. Whether the Superior Court, applying a standard that this Court has never ex-

pressly endorsed, erred when it affirmed the trial court’s admission of evidence of previous

claims against the defendant despite the plaintiff’s failure to demonstrate that those claims in-

4

volved injuries and circumstances that were substantially similar to the injury and circumstances

alleged here.

STATEMENT OF THE CASE

A. Procedural History

Plaintiff initiated this action in the Court of Common Pleas of Philadelphia County on

August 2, 2006, alleging that defendant CSXT is liable for injuries he claims to have suffered

while working as a CSXT employee. Plaintiff’s complaint asserted a claim under the Federal

Employers Liability Act (“FELA”). Compl. ¶ 1 (R.34a). Subsequently, after the close of evi-

dence, the trial court granted plaintiff leave to amend the complaint to add a claim under the Lo-

comotive Inspection Act (“LIA”). 4/30/08 p.m. Tr. 104 (R.567a). At the end of a nine-day trial

held before the Hon. Frederica Massiah-Jackson in 2008, a jury returned a verdict in favor of

plaintiff, awarding him $2,000,000 in damages upon finding CSXT liable under FELA and the

LIA. Jury Interrogatories (R.624a–625a).

CSXT timely moved for post-trial relief. See Def’s Mot. Post-Trial Relief (May 12,

2008); Br. Supp. of Def’s Mot. for Post-Trial Relief (R.626a–709a). On March 30, 2009, the

trial court denied CSXT’s motion for post-trial relief, entered judgment for plaintiff, and ex-

plained its reasons for doing so in two memorandum opinions filed that same day. See Mem.

Supp. of Order Denying Def’s Mots. for J. Notwithstanding the Verdict and/or New Trial

(App.29–106); Mem. Supp. of Verdict and J. Order (App.107–116).

On April 24, 2009, CSXT filed a timely notice of appeal. See Notice of Appeal (R.832a–

834a). On May 19, 2009, in response to an order issued by the trial court pursuant to Pa. R. App.

P. 1925(b), CSXT filed a statement of the matters complained of on appeal. On June 5, 2009,

the trial court filed an opinion pursuant to Pa. R. App. P. 1925(a). See Op. to the Honorable Su-

perior Court (App.26–28).

5

On September 13, 2010, a divided panel of the Superior Court affirmed the judgment

against CSXT over Judge Freedberg’s partial dissent. App.1–25.

B. Statement of Facts

CSXT is one of the nation’s leading freight railroads. Plaintiff was a CSXT employee for

approximately 34 years. For the majority of those years, plaintiff worked as a locomotive engi-

neer in CSXT’s RG rail yard in Philadelphia. 4/22/08 Tr. 172–79 (R.326a–333a); 4/25/08 Tr.

55–56 (R.456a–457a)1.

A rail yard comprises a series of interconnected tracks. It is where incoming trains are

disassembled and their constituent cars are then reassembled into new, outgoing trains. Yard en-

gineers, such as plaintiff, operate the locomotives that move the cars around the yard.

Plaintiff claims to have been injured in the course of his employment. Although he also

claims to have developed carpal tunnel syndrome in his left wrist, plaintiff’s primary allegation

is that he suffered a herniated disk in his neck as the result of cumulative trauma. 5/1/08 Tr. 36

(R.572a).

At trial, plaintiff advanced multiple theories regarding the genesis of his neck injury.

Plaintiff attributed his herniated disk to the cumulative effect of the jolts he experienced when

coupling rail cars, the allegedly awkward postures he sporadically assumed during the course of

each shift, and the vibrations to which he was exposed while operating locomotives. See, e.g.,

4/22/08 Tr. 10–11, 14, 16 (R.264a–265a; R.268a; R.269a). According to plaintiff, these factors

were in turn caused or compounded by several other factors, including allegedly defective loco-

motive seats (which supposedly failed to protect plaintiff against jolts and vibrations), the alleged

1 The 4/25/08 transcript produced by the court reporter lacks accurate pagination after page 20 (when the line numbers disappear). To minimize confusion, we will refer to the page num-bers at the bottom of each page when citing to the 4/25/08 transcript.

6

lack of mirrors on some locomotives (which supposedly forced plaintiff to assume awkward

postures when operating a train in reverse), and the allegedly inadequate training of the conduc-

tors who assist engineers in the coupling process (which supposedly caused plaintiff to expe-

rience stronger jolts when coupling cars than he otherwise would have). See, e.g., 4/22/08 Tr. 8–

10 (R.262a–264a). Although plaintiff advanced all of these theories (and others) at various

points, he placed particular emphasis on the fact that CSXT did not install headrests on its loco-

motive seats. Thus, after reminding the jury of evidence that “24 percent of whiplash type inju-

ries occur at three miles an hour or less,” plaintiff’s counsel argued in closing that “[t]his case is

not significantly about vibration; it’s about the fact that none of these seats had a neck support,

not one of these seats had a neck support.” 5/1/08 Tr. 52, 106 (R.577a, R616a).

1. Pretrial Motions

The parties filed numerous pretrial motions, two of which are directly relevant to the is-

sues raised in this petition.

When, shortly before the close of discovery, CSXT learned that plaintiff was scheduled

for surgery soon after the discovery cut-off, CSXT filed a motion for extraordinary relief seeking

an opportunity to conduct post-surgical depositions of plaintiff and his surgeon and a post-

surgical independent medical examination of plaintiff. Def’s Mot. Extraordinary Relief (R.48a–

50a). CSXT’s motion was filed on September 11, 2007; discovery ended on October 1, 2007;

and plaintiff had his surgery on November 9, 2007. As CSXT explained to the trial court,

CSXT’s “ability to investigate and defend this case [would] be materially hampered if it [were]

not permitted to engage in these limited discovery efforts.” Id. at 2 (R.49a). Nonetheless, the

trial court denied CSXT’s motion without hearing oral argument and without explaining the ba-

sis for its decision. Order (Oct. 5, 2007) (R.64a).

7

A few days before the close of discovery, plaintiff filed a motion to compel discovery.

Plaintiff requested, among other things, that CSXT be required to “produce a list of all persons

who have alleged that while working as locomotive engineers for Defendant their exposure to

whole body vibration, awkward postures, slack action jolts and shocks, or poor seats” caused

them to “develop[] spinal diseases and/or injuries during the period 1990 to present.” Plf’s Mot.

Compel, at 2 ¶ 5 (R.56a). CSXT opposed plaintiff’s motion because, among other reasons,

plaintiff was “requesting information that does not relate to his case.” Def’s Br. Opp. Plf’s Mot.

Compel, at 9 (R.73a). In particular, CSXT noted that plaintiff’s request extended to all spinal

injuries, including injuries to the lumbar and thoracic spine, although plaintiff’s herniated disk

was located in his cervical spine, and that plaintiff’s request extended to all engineers employed

by CSXT, including those who worked on the open road, although plaintiff worked in a rail yard

(where, among other differences, locomotives are operated at much slower speeds). See id. The

motions judge granted plaintiff’s motion and ordered CSXT to produce the list “without objec-

tions.” Order (Oct. 17, 2007) (R.77a).

2. Motion in Limine

The day before testimony commenced, the trial judge heard argument on the parties’ re-

spective motions in limine, one of which is directly relevant to the issues raised in this petition.

In response to the order granting plaintiff’s motion to compel discovery, CSXT produced

a list of 59 engineers who had claimed to have suffered some form of “spinal” injury as a result

of their “exposure to whole body vibration, awkward postures, slack action jolts and shocks, or

poor seats” while working for CSXT. Plf’s Mot. Compel, at 2 ¶ 5 (R.56a). Insisting that the list

was irrelevant and therefore inadmissible unless plaintiff could establish that each claimed injury

was substantially similar to the plaintiff’s alleged injury, CSXT moved in limine to preclude in-

troduction of the list until plaintiff made the requisite showing. See Def’s Mot. in Limine to

8

Preclude Other Claims or Lawsuits, at 4 (R.191a). At argument on the motion in limine, CSXT

emphasized that the list was produced in response to a request that extended to all “spinal” inju-

ries, and thus was not limited to injuries of the cervical spine such as the injury allegedly suf-

fered by plaintiff. 4/21/08 Tr. 161–63 (R.257a–259a). In response, plaintiff’s counsel repeatedly

but falsely represented to the court that the interrogatory that resulted in the list’s production

“specifically deal[t] with the cervical spine, not the low back.” Id. at 164 (R.260a); see also id.

at 160 (R.256a) (describing list as “a group of 60 [sic] engineers with cervical spine problems”);

id. at 161 (R.257a) (“the interrogatory” requested “a list of locomotive engineers who made

claims based on these problems with cervical spine pathology”). Since neither party had the ac-

tual interrogatory at hand, the trial judge deferred a final ruling until the following morning, but

said that she would “have to assume that [CSXT] gave relevant information of the cervical

spine” unless CSXT was able to prove otherwise. Id. at 164 (R.260a) (emphasis added).

The next morning the court was presented with the interrogatory. See 4/22/08 Tr. 38

(R.274a). Although the interrogatory plainly extended to all spinal injuries allegedly suffered by

all engineers (cf. Plf’s Mot. Compel, at 2 ¶ 5 (R.56a) (setting forth terms of interrogatory)), and

although CSXT informed the court that the majority of claims listed in response to the interroga-

tory were in fact dissimilar because they involved “mostly low back cases” brought by “over-the-

road folks” (i.e., engineers who, unlike plaintiff, did not work in rail yards) (4/22/08 Tr. 39

(R.275a)), the trial court denied CSXT’s motion in limine, first orally and then in a written order.

See id. at 39–40 (R.275a–276a) (Mr. Lyda [counsel for CSXT]: “Is the railroad on notice if a

locomotive road engineer makes a low back claim in Alabama?” The Court: “The answer is

‘Yes.’”); Order (Apr. 24, 2008) (R.410a).

9

3. Evidence Offered at Trial

a. Evidence Attributing Plaintiff’s Injury To Whiplash

As noted above, plaintiff advanced various theories as to what caused the herniated disk

in his neck. Plaintiff’s principal theory at trial was that his herniated disk was caused, at least in

part, by defective locomotive seats. Although he did offer some testimony suggesting that the

seats he used were sometimes insecurely mounted (see, e.g., 4/22/08 Tr. 194 (R.346a)), plain-

tiff’s primary contention was that the seats were inherently defective. And, although he repeat-

edly referred to a variety of purported defects, including the absence of armrests and high seat

backs (see, e.g., id. at 70; 4/23/08 Tr. 198; 5/1/08 Tr. 47–48 (R.302a; R.398a; R.573a–574a)),

plaintiff placed greatest emphasis on the absence of headrests. Indeed, plaintiff made the lack of

headrests a central theme of his case, telling the jury in his opening statement that “[y]ou will see

that the seats . . . have no headrests” (4/22/08 Tr. 9 (R.263a)),2 and telling the jury in his closing

argument that “[t]his case is . . . about the fact that none of these seats had a neck support”

(5/1/08 Tr. 106 (R.616a)).

Consistent with this theme, plaintiff presented a great deal of evidence concerning the

lack of headrests. Plaintiff offered testimony from various witnesses to establish that many of

the seats he used over the course of his career lacked headrests. See, e.g., 4/22/08 Tr. 68

(R.300a) (Andres’s testimony that “the seat [shown in a photograph of plaintiff operating a lo-

comotive] does not have a headrest”); id. at 86 (R.307a) (Andres’s testimony that seats he saw

2 In his opening statement, plaintiff also introduced a recurring comparison that equated the lack of headrests to the risk of suffering whiplash in a rear-end automobile collision:

You will hear evidence about what we call jolts and shocks. They are the equiva-lent, I think the evidence will show, of getting rear-ended but you haven’t got a headrest. What happens when you don’t have a headrest, you go forward like that and snapping back, that’s what the evidence will show.

4/22/08 Tr. 12 (R.266a).

10

during a site inspection “don’t have a head rest”); id. at 193 (R.345a) (plaintiff’s testimony that

he used seats with a headrest “maybe twice” during “the last 10 years” of his career); 4/23/08 Tr.

25 (R.357a) (testimony of Dr. Bruce Grossinger, a neurologist to whom plaintiff was referred by

his litigation counsel, that plaintiff’s “work environment” was “a chair without a head rest”);

4/24/08 Tr. 54 (R.436a) (testimony of co-worker Martin Crothers that newly installed seats have

“everything but the headrest”); see also 4/29/08 Tr. 79 (R.498a) (plaintiff’s cross-examination of

CSXT’s biomechanical expert, Dr. John Trimble, to elicit acknowledgment that “there is no

headrest” on the type of seat plaintiff used through the mid-1980s).

In addition to establishing that many of the seats he used lacked headrests, plaintiff pre-

sented a significant amount of testimony that was intended to convince the jury that the lack of

headrests caused, or at the very least contributed to, his herniated disk. According to plaintiff’s

witnesses, plaintiff’s herniated disk was a whiplash injury—the cumulative result of microtrau-

mas that allegedly occurred each time plaintiff was jolted by a “hard coupling” of rail cars. By

rule, rail car couplings occur at four miles per hour or less. 4/22/08 Tr. 188 (R.340a). Without

citing any scientific study or other authority for the proposition, plaintiff’s ergonomist, Dr. An-

dres, testified that “24 percent of whiplash injuries are experienced at three miles an hour or less”

and that rail car couplings are “one of those low impact type situations that does often lead to

whiplash.” Id. at 81 (R.305a).3 Plaintiff then elicited testimony from Dr. Andres tying the al-

leged risk of whiplash to the absence of headrests in locomotive cabs:

3 Unlike Dr. Andres (or any of plaintiff’s other witnesses), CSXT’s ergonomics expert, Dennis Mitchell, actually measured the forces experienced during couplings using an accelero-meter attached to the base of an engineer’s skull. He found that the forces were below the thre-shold associated with injury and in fact lower than those associated with everyday activities such as sneezing, coughing, and plopping into a sofa. See 4/30/08 a.m. Tr. 43–47 (R.548a–552a); see also 4/30/08 p.m. Tr. 58–59 (R.559a–560a) (testimony of Dr. Stephen Dawkins, a board certified doctor of occupational medicine, that “the forces related to coupling is low”).

11

Q.: When there is no head rest and these various G forces you are talking about, what if anything does that do to the engineer’s head from an ergonomic perspective?

A.: The difference here is the head being on top of the neck is about eight to 12 pounds, bowling ball type weight being supported by the muscles that—remember, these muscles also compress these discs.

When you have these forces and you don’t have a headrest, what happens is the impact comes through the cab and through the seat, but what happens is as the seat moves your head, inertia of your head doesn’t move at first.

If you are hit—this is whiplash injury—if you are hit from behind your body moves forward with the seat but your head stays where it is until it either hits the headrest or gets to the end of its range of motion and then comes forward. There is inertia. The purpose of the headrest is to prevent it from getting to that really extended position.

4/22/08 Tr. 90 (R.309a).

Plaintiff elicited similar testimony from Dr. Ronald Greene, an orthopedist who ex-

amined plaintiff for purposes of litigation. When asked by plaintiff’s counsel to explain the basis

for his opinion that plaintiff’s herniated disk was “causally related to his job as a locomotive en-

gineer,” Dr. Greene stated:

The average weight of the head is 17 pounds suspended on the neck, which is rel-atively thin, and that’s supported by muscles in the back of your neck. A little bit in the front of your neck, these muscles really don’t do a whole lot in supporting your head at all. And your trapezius muscles that are over here, the problem is that if you massively contract all those muscles at one time and you suddenly stop, even rolling down the driveway and slamming on the brakes, your head’s going to be thrown back and forth and you can’t control that. No human being can control that because of the forces that are exerted in the area by the movement of the head and relative to the muscle strength that you have.

When the neck is thrown forward the amount of pressure in the disk space in-creases over at rest if it was staying like this. And when it’s thrown backward, the pressure almost doubles from the position at rest, upright. And whereas that’s not really a problem if it happens, you know, once in a while[, i]t’s a major problem if it’s happening repetitively during the day, five days a week, you know, 52 weeks a year or 51 weeks a year or however many weeks he worked during that year over 25, 30 years or however long you do that. In other words, when you keep doing that again and again and again you’re going to traumatize the disk spaces

12

because of elevation of pressure in the disks and you’re going to cause a break-down of the disks.

Greene Dep. 76–77 (R.211a–212a)4; see also id. at 169 (R.225a) (“when you get jolted like that

you have a 17 and a half pound head on top of your neck and your muscles are not capable of

preventing . . . your head from being thrown back and forth”).

Lest the inference that plaintiff sought to draw be lost on the jury, plaintiff’s counsel then

elicited testimony expressly linking plaintiff’s herniated disk to the lack of headrests:

Q.: If Mr. Lockley was sitting on locomotive seats that did not have any neck support, could that affect his stresses on the cervical spine?

A.: Yes.

. . . .

Q.: Did you ever drive your car into another stopped vehicle at four miles an hour?

A.: No, I didn’t.

Q.: Assuming you ever did, is there something behind your head to protect your head?

A.: Yeah. There’s the headrest. It sits up back here and that’s what prevents your head from going back and forth.

Q.: Have you ever seen a headrest on any locomotive seat in any videotape or photograph reviewed in this case?

A.: No.

Id. at 226–27 (R.237a–238a). Continuing the automobile analogy, Dr. Greene further testified:

You’ve got a ton of literature out there in the motor accident [context] that led to the standards that require head support in a car. Any one of which will support the fact that if [plaintiff] had a head support on his seat, when his head bounced back he would not have hyperextended.

Id. at 243.

4 Dr. Greene’s videotaped deposition was played to the jury. See 4/24/08 Tr. 65 (R.439a).

13

During closing argument, plaintiff—who told the jury that CSXT was liable because

“you got seats in that locomotive that are not safe” (5/1/08 Tr. 50 (R.576a))—repeatedly re-

minded the jury of the testimony attributing plaintiff’s herniated disk to the lack of headrests.

For example, plaintiff’s counsel said:

Under the railroad rules, four miles an hour is maximum coupling speed. You heard ample testimony from Mr. Lockley and Mr. Crothers that four miles an hour is still a rough hit.

What did Dr. Andres say? 24 percent, 24 percent of whiplash type injuries occur at three miles an hour or less.

The defense made the contention: Well, on Mr. Lockley’s video you don’t see his head snapping back and forth.

Ladies and gentlemen, that videotape is real time. True, you will not see his head going whatever, 45 degrees all the way back, but Dr. Greene told us that at two miles an hour, at two miles an hour when you stop, the body goes one way and your neck goes the other.

It’s a microtron, that if we had the technology to slow down Mr. Lockley’s film, you would see in very, very slow motion, you would see how the neck and the head move one way and the body moves the other. This is all scientific informa-tion that is well documented and well-known. The railroad knows about this.

The question is: Why [not] put a high headrest in a yard engine? Why not do that? It wasn’t done.

5/1/08 Tr. 52–53 (R.577a–578a); see also, e.g., id. at 50 (R.576a) (referring to “seats that

have no neck support”). “This case is,” said plaintiff’s counsel, “about the fact that none of these

seats had a neck support.” 5/1/08 Tr. 106 (R.616a).

b. Evidence of Allegedly Similar Claims

As noted above (see supra 7–8), the trial court denied CSXT’s motion in limine to prec-

lude plaintiff from introducing evidence of other, supposedly similar claims unless and until

plaintiff had established that those claims were in fact for substantially similar injuries incurred

under substantially similar circumstances. 4/21/08 Tr. 161–64 (R.257a–260a); 4/22/08 Tr. 38–

14

40 (R.274a–276a); Order (Apr. 24, 2008) (R.410a). Having denied CSXT’s motion, the trial

court allowed plaintiff to introduce evidence of purportedly similar claims without proving their

similarity. Thus, Dr. Andres was permitted to testify that he had been “provided with a list of . . .

59 engineers that had claims similar to Mr. Lockley’s.” 4/22/08 Tr. 96 (R.310a). According to

Andres (who never offered any explanation of what made those claims purportedly similar), the

list was evidence that CSXT “should have knowledge that there are these types of problems out

there.” Id. Later, just before plaintiff rested, the trial court, over CSXT’s renewed objection,

allowed plaintiff to inform the jury that CSXT had provided the list of “59 names” in response to

plaintiff’s request that CSXT “produce a list of all persons who have alleged that while working

as locomotive engineers for defendant their exposure to whole body vibration, awkward post-

ures, slack action, jolts and shocks or poor seats they developed spinal diseases and/or injuries

during the period 1990 to present.” 4/25/08 Tr. 132 (R.470a). Plaintiff relied on the list during

closing argument, reminding the jury that there were “59 locomotives engineers, 59 of them”

who “have claims” because they “had prior problems, problems with vibration and shock and

jolts.” 5/1/08 Tr. 108 (R.617a). To ensure that the purported connection between those claims

and plaintiff’s claim was not lost on the jury, plaintiff told the jury: “[O]ne of those claims is in

Philadelphia. That’s Lockley.” Id.5

c. Evidence of Plaintiff’s Alleged Post-Surgical Condition

Although the trial court deprived CSXT of the opportunity to conduct a post-surgical in-

dependent medical examination of plaintiff and of the opportunity to conduct post-surgical depo-

sitions of plaintiff and his surgeon (see supra 6), plaintiff was allowed to introduce evidence of

5 CSXT renewed its objection to introduction of the claims data in its post-trial motion. See Br. Supp. Def’s Mot. for Post-Trial Relief, at 47–50 (R.679a–682a); see also Appellant’s Concise Statement of Matters Complained of on Appeal ¶ 8 (CSXT Br. Add.96).

15

his alleged post-operative condition. Plaintiff was, for example, able to testify that he had “more

neck pain after the surgery” and that the surgery left him with a “limited” range of motion.

4/25/08 Tr. 43 (R.453a); id. at 45 (R.454a); see also id. (R.454a) (“The pain I have now is great-

er than before the surgery.”). Plaintiff was also permitted to testify that he has been unable to

cook for church functions “since [his] surgery” and that he is “upset” and “embarrassed” as a re-

sult. 4/25/08 Tr. 51 (R.455a).

Dr. Grossinger, the neurologist to whom plaintiff was referred by his attorney, testified at

length about plaintiff’s alleged post-surgical condition. Grossinger, who made a point of telling

the jury that “I have seen him post-operatively” (4/23/08 Tr. 31 (R.361a)), testified that plain-

tiff’s “neck pain got worse” as a result of the surgery. Id. at 32 (R.362a); see also id. at 31–32

(R.361a–362a) (Grossinger’s testimony that plaintiff “has keloid scarring at both levels of sur-

gery” which “has taken the space of the disc and continues to press on the nerve” and which

“helps explain the scenario with Mr. Lockley”). Grossinger further testified that his “assessment

that [plaintiff] would not be able to return to gainful employment” was, in part, “based on the

fact that [plaintiff] has failed a major two level surgery.” Id. at 33 (R.363a); see also id. at 36

(R.366a) (characterizing surgery as a “[f]ailed cervical laminectomy”); id. at 38 (R.368a) (opin-

ing that plaintiff is unlikely to return to gainful employment “given the consequences of his sur-

gery”).

Plaintiff’s vocational expert, Donald Jennings, also offered an opinion based on plain-

tiff’s alleged post-surgical condition. Jennings told the jury that to prepare his evaluation of

plaintiff’s employment prospects he “specifically requested [a physical capacities and pain as-

sessment form] after the surgery to see what improvement would occur as a result of the sur-

gery.” 4/23/08 Tr. 128 (R.391a). But, Jennings told the jury, “[a]s it turns out, there was abso-

16

lutely no improvement.” Id.. According to Jennings, Dr. Grossinger’s testimony about plain-

tiff’s “failed” surgery “confirm[ed]” Jennings’ opinion that plaintiff will likely “not be able to do

any kind of work, either full or part time.” Id. at 131 (R.392a).

Plaintiff’s assertion that his surgery had failed was highly significant. Prior to the sur-

gery, plaintiff’s treating physicians and retained experts agreed that plaintiff could resume work-

ing if the surgery were successful. See, e.g., id. at 34 (R.364a); id. at 127; id. at 141; Greene

Dep. 192–94. Indeed, prior to the surgery, plaintiff’s surgeon “projected [a] 95 percent chance

of improvement and projected that six to 12 months down the road [plaintiff] would be back to

work.” 4/23/08 Tr. 34 (R.364a). Thus, evidence that his surgery had failed was an essential

component of plaintiff’s claim that is he is completely and permanently disabled.6 For example,

when asked about the more optimistic prognosis that he had given prior to plaintiff’s surgery, Dr.

Grossinger stated: “Unfortunately, I have had the perspective of time. Rather than just look at

projections, I have seen him after surgery. That’s what I am relating to you, members of the

jury.” Id.

Referring to plaintiff’s surgery in his closing argument, plaintiff’s counsel told the jury:

“[I]t’s a failed surgery. It didn’t go well.” 5/1/08 Tr. 65 (R.583a). He then reminded the jury of

Dr. Grossinger’s opinion that plaintiff “is permanently disabled” as a result, and of Dr. Jennings’

opinion that plaintiff consequently “has no future earning potential.” Id. Plaintiff’s counsel also

recalled plaintiff’s testimony of being “upset” and “embarrassed” by his alleged inability to cook

for church functions “since [his] surgery” (4/25/08 Tr. 51 (R.455a)), and argued to the jury that

6 Plaintiff filed suit on August 2, 2006 (see Cmplt. (R.33a)), but was well enough to con-tinue working for more than a year. He did not stop working until the end of September 2007 (see 4/22/08 Tr. 16 (R.269a)), or shortly before his surgery in November of that year. That plaintiff was able to work for more than a year prior to his surgery but allegedly unable to work after his surgery indicates how important the surgery’s purported failure was to plaintiff’s claim of total disability.

17

this alleged “emotional suffering and upset is even more significant” than plaintiff’s “physical

pain and suffering.” 5/1/08 Tr. 72–73 (R.584a–585a).

4. Verdict

The jury returned a verdict in favor of plaintiff. It found that CSXT had violated the LIA

and had been negligent. It also found that plaintiff had been contributorily negligent, attributing

78% of the negligence to CSXT and 22% to plaintiff. The jury found that plaintiff had suffered

total damages of $2,000,000. Jury Interrogatories (R.624a–625a). Upon denying CSXT’s mo-

tion for post-trial relief, the trial entered judgment in favor of plaintiff in that amount. Mem.

Supp. of Verdict and J. Order (App.116).7

C. The Opinion Below

CSXT raised four issues on appeal to the Superior Court. In addition to challenging the

denial of post-surgical discovery and the admission of other claims evidence, CSXT argued that

it was entitled to a new trial because a sworn, qualified juror had been improperly dismissed and

because the jury had been allowed to hold CSXT liable on an impermissible basis. The Superior

Court denied all relief and affirmed the judgment over Judge Freedberg’s partial dissent.

Although the Superior Court unanimously agreed that “the trial court had no legitimate

basis upon which to deny [CSXT] the right to conduct post-surgical discovery of Plaintiff’s med-

ical condition,” the court denied relief because it found, over Judge Freedberg’s dissent, that

CSXT had “failed to establish that it suffered the prejudice necessary for this Court to grant it a

new trial.” App.5. In so concluding, the panel majority relied on the fact that CSXT “had Plain-

tiff’s post-surgical records.” App.9; see also App.6 (“Plaintiff provided [CSXT] with all his

post-surgical records . . . .”). According to the panel majority, access to plaintiff’s medical

7 Because CSXT was found to have violated the LIA, the judgment was not reduced by the percentage of plaintiff’s contributory negligence. Cf. 45 U.S.C. § 53.

18

records was an adequate substitute for discovery because, supposedly, CSXT did “not articulate

how” plaintiff’s testimony or that of his experts “contained information that was not discernable

from these records.” App.6; see also App.9 (CSXT “had Plaintiff’s post-surgical records, which

detailed the fusion in Plaintiff’s neck[] and served as the medical basis for Plaintiff’s claim that

he experienced more pain following surgery.”).8

Judge Freedberg dissented on the ground that CSXT “was prejudiced by the decision not

to allow a post-surgical medical examination and deposition of [plaintiff’s] surgeon.” App.22.

Because “the jury was instructed that it could award damages” for plaintiff’s injuries, for his fu-

ture pain and suffering, and for his future lost earnings, and because the “[c]alculation of the

amount of these damages is impacted upon by the result of the surgery,” Judge Freedberg con-

cluded that CSXT “should have been allowed to depose the surgeon and to have its expert ex-

amine [plaintiff] so it could determine whether there was relevant evidence on these damage is-

sues.” App.23. Specifically noting plaintiff’s claim that the surgery caused him to suffer in-

creased pain and a reduced range of motion, Judge Freedberg found that CSXT “should have

been permitted to have him undergo a post-surgical medical examination to test this claim” and

“should have had the opportunity to ask the surgeon whether the operation had” in fact had those

alleged consequences. App.24 (citing 4/25/08 Tr. 43 (R.453a); 4/25/08 Tr. 45 (R.454a)). Ex-

8 The panel majority also thought it relevant that CSXT, supposedly “[f]or reasons . . . un-known,” did not call Dr. Menachem Meller to testify although Dr. Meller had “performed a pre-surgical IME of Plaintiff and wrote a post-surgical supplemental report[] opining that Plaintiff’s surgery was successful and that Plaintiff was capable of working.” App.7. But, as CSXT ex-plained to the Superior Court, “CSXT’s decision to not call Dr. Meller was itself a consequence of the trial court’s denial of CSXT’s request for a post-surgical IME.” CSXT Reply 7–8. Be-cause he was not allowed to conduct a post-surgical IME, Dr. Meller’s post-surgical report was, of necessity, based not on his personal examination of plaintiff but solely on his “review of the operative report” written by plaintiff’s surgeon. Def’s Am. Pretrial Mem., Ex. A at 1 (R.164a). Thus, “CSXT could not call Dr. Meller to counter Dr. Grossinger,” who had treated plaintiff af-ter his surgery, “without risking a cross-examination that would have shown Dr. Meller to be at a gross informational disadvantage.” CSXT Reply 8.

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pressly rejecting the majority’s holding that “access to [plaintiff’s] post-surgical medical records

. . . was sufficient to avoid prejudice,” Judge Freedberg observed that “[a] review of such records

is not the equivalent of the opportunity to depose the surgeon and to have a medical examination

conducted by [CSXT’s] medical expert.” App.24–25. Judge Freedberg concluded that CSXT’s

ability to prepare for trial, to cross-examine [plaintiff] and his witnesses, and to plan strategy was prejudiced by the refusal to allow the requested deposition and examination. The ruling substantially diminished [CSXT’s] ability to properly contest [plaintiff’s] damage claims. [CSXT] did not have a level playing field.

App.25.

As for CSXT’s argument that it was entitled to a new trial because a sworn, qualified ju-

ror had been improperly dismissed, the Superior Court “agree[d] . . . that the trial court abused its

discretion in striking the juror for cause,” but denied CSXT relief because CSXT “did not suffer

prejudice.” App.10, 14. That issue is not before this Court.

Another issue that was raised below but is not presented in this petition is CSXT’s con-

tention that the jury was allowed to hold CSXT liable on an impermissible basis. CSXT argued

that the jury had been permitted to hold CSXT liable for failing to install headrests on its loco-

motives notwithstanding the fact that federal regulations do not require their installation. The

Superior Court rejected that argument, finding that “[a]lthough Plaintiff contended that the lack

of headrests aggravated his spinal injuries, Plaintiff sought to impose liability because,” contrary

to 49 C.F.R. § 229.119(a), CSXT’s “seats were not securely mounted.” App.15.

What is significant for purposes of this petition, and in particular the second question pre-

sented, is the Superior Court’s recognition that plaintiff did indeed “contend[] that the lack of

headrests aggravated his spinal injuries.” Id. There is, in fact, no dispute that plaintiff presented

a considerable amount of evidence concerning the absence of headrests. As plaintiff explained

to the Superior Court, plaintiff’s

20

case was based on rough couplings causing hyperextension of the spine from the shocks and jolts. It was important to explain to the jury why [plaintiff’s] head was able to go backwards, thereby sustaining cumulative trauma. The reason for this was the absence of headrests or high back seats.

Plf’s Br. 6. The absence of headrests, plaintiff told the court, “explain[ed] how rough couplings

resulted in cervical spinal injuries.” Id.9 In other words, on plaintiff’s theory of the case, the ab-

sence of headrests explained why he suffered “‘a whiplash injury’” to his cervical spine. Id. at

32 (quoting 4/22/08 Tr. 90 (R.309a)).

Precisely because the specific injury plaintiff claims to have suffered was a whiplash in-

jury to his neck resulting from rough couplings in a railyard, CSXT objected when plaintiff

sought to introduce the evidence of 59 other claims against CSXT. As noted above (see supra 7–

8), those claims were not limited to claims for whiplash injuries to the neck caused by rough

couplings. Rather, they included claims for all spinal injuries allegedly suffered by all CSXT

engineers, and thus encompassed claims for lower back injuries allegedly suffered by road engi-

neers, who, because they do not spend their days assembling trains in railyards, rarely expe-

rienced any couplings—rough or otherwise. Cf. Plf’s Mot. Compel, at 2 ¶ 5 (R.56a) (setting

forth terms of interrogatory that yielded list of 59 claims). Although the Superior Court correctly

recognized that evidence of a prior claim is admissible only if that prior claim arose from a “‘suf-

ficiently similar’” injury that “‘occurred under sufficiently similar circumstances,’” and that

“‘[t]he burden is on the party introducing the evidence to establish this similarity before the evi-

dence is admitted’” (App.19–20 (quoting Valentine v. Acme Markets, Inc., 687 A.2d 1157, 1162–

63, 455 PA Super. 256, 266 (1997))), it nevertheless affirmed the trial court’s admission of the

9 See also Plf’s Br. 8–9 (“While the absence of high back seats and/or headrests was not a LIA violation, it was necessary to discuss and explain why rough couplings resulted in repetitive micro-traumas.”); id. at 30 (“the absence of headrests is not why CSX was negligent, and certain-ly not why it violated the LIA, but only the reason that [plaintiff] sustained cumulative spinal trauma during his railroad employment”).

21

evidence of 59 other claims against CSXT. According to the Superior Court, “[a]lthough

[CSXT] contends that most of the claims were ‘low back cases’ asserted by ‘road engineers,’ not

yard engineers like Plaintiff, these inquiries go to the weight of the evidence and not its admissi-

bility.” App.20–21 (quoting CSXT Br. 44). Thus, on the Superior Court’s view, the mere fact

that the other claims involved spinal injuries to locomotive engineers was “an adequate founda-

tion to establish” that those claims” involved “similar accidents occurring at substantially the

same place and under similar circumstances as the accident in question.” App.21.

REASONS FOR ALLOWING THE APPEAL

The decision below is not only unjust vis-à-vis CSXT, but threatens the fundamental fair-

ness of personal injury trials throughout the Commonwealth. If access to medical records is

deemed an adequate substitute for depositions and an independent medical examination, personal

injury defendants will be denied the protections afforded by Pennsylvania Rules of Civil Proce-

dure 4001(c) and 4010(a)(2)—protections that this Court recognizes “are essential in order to

insure the orderly and equal administration of justice.” Paden v. Baker Concrete Constr., Inc.,

658 A.2d 341, 344, 540 Pa. 409, 414 (1995). Similarly, if plaintiffs are allowed to introduce evi-

dence of prior claims without being required to demonstrate that those claims in fact arose from

substantially similar injuries suffered under substantially similar circumstances, personal injury

defendants will be denied the protection of Pennsylvania Rule of Evidence 402 and routinely

forced to defend against irrelevant, prejudicial evidence. This Court should exercise its supervi-

sory power to ensure the fundamental fairness of personal injury trials.

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I. HOLDING ACCESS TO MEDICAL RECORDS TO BE AN ADEQUATE SUBS-TITUTE FOR DEPOSITIONS AND AN INDEPENDENT MEDICAL EXAMINA-TION IS UNFAIR, UNSUPPORTED BY THIS COURT’S PRECEDENTS, AND CONTRARY TO DECISIONS IN OTHER JURISDICTIONS.

Over Judge Freedberg’s vigorous dissent, the panel majority held that CSXT was not en-

titled to relief despite being erroneously denied the opportunity to conduct post-surgical discov-

ery because, on the majority’s view, access to plaintiff’s medical records was an adequate substi-

tute for the depositions and independent medical examination to which CSXT was indisputably

entitled. That holding is unfair, unsupported by this Court’s precedents, and contrary to numer-

ous decisions in other jurisdictions. If allowed to stand, it will undermine the important protec-

tions afforded by Rules 4001(c) and 4010(a)(2) of the Pennsylvania Rules of Civil Procedure and

thereby imperil personal injury defendants’ right to a fair trial.

It is beyond dispute that a defendant has the right to depose the plaintiff and other wit-

nesses prior to trial. See Pa. R. Civ. P. 4001(c). Although perhaps too obvious to merit discus-

sion, it should be remembered that “[d]epositions are the factual battleground where the vast ma-

jority of litigation actually takes place” (Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa.

1993)) and that “depositions of the parties are an exceedingly important aspect of the discovery

process” (Adams v. Teck Cominco Alaska, Inc., 2005 WL 846202, at *2 (D. Alaska 2005)).

Among other things, depositions enable a party to uncover evidence for use at trial, to learn the

extent of the deponent’s knowledge, and to commit the deponent to certain testimony. See 7

MOORE’S FEDERAL PRACTICE § 30.41 (3d ed. 2009). The rules granting litigants the right to dis-

covery, including the right to take the opposing party’s deposition, “are designed to encourage a

fair trial on the merits, and to discourage unfair surprise” (Eigen v. Textron Lycoming Recipro-

cating Engine Div., 874 A.2d 1179, 1189, 2005 PA Super. 141, ¶ 34 (2005)) and “are essential in

order to insure the orderly and equal administration of justice” (Paden, 658 A.2d at 344, 540 Pa.

23

at 414). A litigant who is deprived of the opportunity to depose the opposing party before trial

is at a significant disadvantage. Indeed, because of the important role depositions play in ensur-

ing a fair trial, a party’s failure to appear at a properly noticed deposition is sanctionable. See Pa.

R. Civ. P. 4019(a)(1)(iv).

No less important in a personal injury case is the defendant’s right to obtain an indepen-

dent medical examination of the plaintiff. Indeed, the right to such examination is “a particularly

important right in personal injury cases” (Anderson v. Bernhard Realty Sales Co., 329 A.2d 852,

861 n.10, 230 Pa. Super. 21, 37 n.10 (1974) (Price, J., concurring and dissenting)) because

“physical . . . examination of an opposing party is clearly the best method of evaluating claims of

injury, illness or incapacity by that party” (David E. Keltner, 2 TEX. PRAC. GUIDE: DISC. § 9:3

(2010)). Thus, “[i]n personal injury cases, . . . the physical examination is as important a device

as the deposition.” David D. Siegel, N.Y. PRAC. § 350 (4th ed. 2010); see also, e.g., Kristyn S.

Appleby & Joanne Tarver, MED. RECORDS REV. § 10.4 (2010) (“[o]ne of the more important dis-

covery devices is the independent medical examination”). Giving personal injury defendants the

right to obtain an independent medical examination of the plaintiff is meant to ensure “a level

playing field as between the parties.” Looney v. Nat’l R.R. Passenger Corp., 142 F.R.D. 264,

265 (D. Mass. 1992); see also, e.g., Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D.

Cal. 1995) (one purpose of independent medical examinations “is to ‘level the playing field’ be-

tween parties in cases in which a party’s physical or mental condition is in issue.”); Tomlin v.

Holecek, 150 F.R.D. 628, 632 (D. Minn. 1993) (the right to conduct an independent medical ex-

amination “is a considered attempt to fairly place the parties on a somewhat equal footing”).

Accordingly, under Pennsylvania law, “[w]hen the . . . physical condition of a party . . . is in con-

troversy,” that party may be required “to submit to a physical . . . examination.” Pa. R. Civ. P.

24

4010(a)(2). In this instance, there is no dispute that plaintiff, who claims to have suffered a per-

manent disability as a result of a workplace injury, placed his post-surgical physical condition

“in controversy.” CSXT was therefore entitled to an order requiring that plaintiff submit to a

post-operative physical examination.

It is true that CSXT was allowed to conduct pre-surgical depositions of plaintiff and his

surgeon, and a pre-surgical independent medical examination of plaintiff, but those were plainly

inadequate given plaintiff’s contention that his damages are, in part, attributable to the surgery

itself. Indeed, because doing so is necessary to “provide a level playing field” (Edson v. Liberty

Mut. Ins. Co., 2002 WL 31946902, at *1 (N.D. Cal. 2002)), courts routinely order supplemental

depositions and medical examinations when, after an initial deposition and examination, the

plaintiff has undergone surgery or experienced some other event that may have altered his medi-

cal condition.10 Under such circumstances, which are present here, supplemental discovery is

typically ordered because the “[d]efendant surely has a right to develop a complete record of the

nature and extent of plaintiff’s injuries.” Doe v. Dist. of Columbia, 229 F.R.D. 24, 27 (D.D.C.

2005).11 As one court has observed: “Certainly, the injured party would not expect to go to trial

10 In fact, when a plaintiff undergoes surgery after discovery has closed, some courts will order that trial be postponed so that the defendant has an opportunity to conduct supplemental, post-operative discovery. See, e.g., Wegeng v. Flowers, 753 S.W.2d 306, 308 (Mo. Ct. App. 1988) (ordering new trial where defendants were denied continuance after plaintiff’s surgery, holding that the defendants “were entitled not only to take depositions but to have time to consult with their own physicians and have their physicians examine [plaintiff] after the surgery”). In this case, CSXT did not seek a continuance. See Def’s Mot. Extraordinary Relief (R.48a). Plaintiff had his surgery on November 9, 2007. CSXT asked that the post-surgical depositions and independent medical examination occur within 60 to 90 days thereafter. Id. At the time CSXT filed its motion, trial was not scheduled to begin until February 4, 2008. As it turned out, trial did not actually begin until April 22, 2008.11 Cf. Firoz v. Kolaranda, 2007 WL 685447, at *7 (N.J. Super. Ct. App. Div. 2007) (per curiam) (“Plaintiff’s continued medical problems, which necessitated continued diagnosis, treatment, and surgery, would be a well-recognized example of ‘exceptional circumstances’ war-ranting further extensions of discovery.”); Pena v. Women’s Outreach Network, Inc., 2005 WL

25

without an up-to-date examination by his own physician. Upon what logic should the opposing

party be denied the right to be equally well prepared to present the issue?” Vopelak v. Williams,

42 F.R.D. 387, 389 (N.D. Ohio 1967).12

The decision in Royal Caribbean Cruises, Ltd. v. Cox, 974 So. 2d 462 (Fla. Dist. Ct. App.

2008), is instructive. In that case, as in this case, the trial court refused to order a supplemental

independent medical examination even though the plaintiff had undergone surgery after the ini-

tial examination. The appellate court, however, took the extraordinary step of granting the de-

fendant interlocutory relief because it recognized that the trial court’s refusal to order supple-

mental discovery was “a departure from the essential requirements of the law” that would inflict

a “material injury” on the defendant. Id. at 465 (internal quotation marks omitted). The court

held that the very fact that plaintiff had had surgery in the intervening period meant that his

“physical condition underwent substantial changes since he was first examined.” Id. at 466. Re-

cognizing that “[a] supplemental IME could reveal information which [the defendant] might em-

ploy at trial to refute, impeach, or contest the conclusions of [plaintiff’s] experts who have ex-

amined [plaintiff] after his . . . operation” (id. at 468), the court further held that “the trial court’s

order effectively prevents [the defendant] from arming itself with the information necessary to

rebut the assertions that will be made by [plaintiff] and his experts at trial,” thereby depriving the

6238553, at *2 (N.Y. Sup. Ct. 2005) (noting that “an additional deposition of plaintiff was granted” based in part upon “the fact that plaintiff underwent a second surgery”), aff’d, 824 N.Y.S.2d 3 (N.Y. App. Div. 2006); 8A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, & Richard L. Marcus, FEDERAL PRACTICE AND PROCEDURE § 2234 (3d ed. 2009) (“if permanent injuries are claimed most courts will, on request, allow an additional examination shortly before the trial”).12 Decisions interpreting federal law, such as Edson, Doe, and Vopelak, are relevant because Pa. R. Civ. P. 4010, which governs the right to obtain an independent medical examination under Pennsylvania law, was “substantially revised to conform closely to Fed. R. Civ. P. 35,” which grants the same right under federal law. Pa. R. Civ. P. 4010 (cmt.). The Pennsylvania rules go-verning depositions are likewise substantively similar to the federal rules. Compare Pa. R. Civ. P. 4001(c), 4007.1(a) with Fed. R. Civ. P. 30(a)(1).

26

defendant of what was necessary “to ensure a fair trial.” Id. at 466 (internal quotation marks

omitted).

Notably, the Royal Caribbean court expressly rejected the position—adopted, over Judge

Freedberg’s dissent, by the panel majority in this case—that access to the plaintiff’s post-

operative records is an adequate substitute for a post-surgical independent medical examination.

As the court recognized, “a mere review of the opposing party’s medical records is not a suffi-

cient substitute for a firsthand, physical examination.” Royal Caribbean, 974 So. 2d at 467. In-

deed, the opportunity to conduct an independent medical examination is so important to a fair

trial that in an earlier case the Florida Court of Appeals found that “[i]t is not enough that the de-

fendants are allowed to review the plaintiff’s medical . . . records” even if they are also given the

opportunity “to depose plaintiff’s medical . . . experts.” Fla. Emergency Physicians-Kang & As-

socs., M.D., P.A. v. Parker, 800 So. 2d 631, 634 (Fla. Dist. Ct. App. 2001). The Florida Court of

Appeals is not alone in this view. On the contrary, courts around the country have repeatedly

rejected the position adopted by the panel majority in this case. For example, the Kentucky Su-

preme Court has squarely held that “even the production of voluminous records by plaintiff does

not necessarily negate the defendant’s interest in an independent examination of plaintiff.” Tay-

lor v. Morris, 62 S.W.3d 377, 379–80 (Ky. 2001); see also, e.g., Lahr v. Fulbright & Jaworski,

L.L.P., 164 F.R.D. 196, 200 (N.D. Tex. 1995) (same), aff’d, 164 F.R.D. 204 (N.D. Tex. 1996);

Duncan v. Upjohn Co., 155 F.R.D. 23, 25 (D. Conn. 1994) (same); Palmer v. Youth Opportuni-

ties Upheld, Inc., 2004 WL 2341571, at *3 (Mass. Super. 2004) (same).13 As Judge Freedberg

13 Similarly, when deciding whether a physician conducting an independent medical exami-nation can ask questions of the plaintiff, numerous courts have recognized that “[t]he questioning of the plaintiffs by defense counsel during the taking of their depositions, the historical medical records, and the answers of the plaintiffs to interrogatories are no substitute for the answers to questions that a physician must pose to a patient during a physical examination.” Romano v. II

27

observed in dissent, “[a] review of such records is not the equivalent of the opportunity to depose

the surgeon and to have a medical examination conducted by [defendant’s] medical expert.”

App.24–25.

The position adopted by the panel majority threatens “the orderly and equal administra-

tion of justice.” Paden, 658 A.2d at 344, 540 Pa. at 414. In almost every case the defendant has

access to the plaintiff’s medical records. Therefore, if access to those records is considered a le-

gally sufficient substitute for an independent medical examination, “it would practically elimi-

nate physical examinations in personal injury cases.” Dominique v. Yellow Freight Sys., Inc.,

642 So. 2d 594, 596 (Fla. Dist. Ct. App. 1994). Indeed, inasmuch as the panel majority held that

access to plaintiff’s medical records was also a sufficient substitute for depositions of plaintiff

and his surgeon, the decision below could signal an end to the most important depositions in per-

sonal injury cases. That would not only eviscerate the rights secured by Rules 4001(c) and

4010(a)(2), but would mark an unfortunate return to the antiquated model of litigation-by-

surprise. More than thirty years ago this Court observed:

The several revolutions which have occurred in the field of procedure, insofar as they relate to problems of pre-trial discovery, have had as their principal focus the desire that a trial should be an inquiry into the facts of a case with each party in a position to examine the evidence upon which a decision will rest. We have moved away from what was described as ‘the sporting theory of justice’ and have embraced a theory of wide-ranging and mutual discovery. “One advantage of discovery is the protection it gives the adversary against surprise evidence which can be proven false or which can be put in a truer and less damaging light if there is opportunity to investigate the matter and produce rebutting or qualifying facts.”

Nissley v. Penn. R.R., 259 A.2d 451, 453, 435 Pa. 503, 507 (1969) (quoting Fleming James, Jr.,

CIVIL PROCEDURE 183 (1965)). The decision below unfairly deprives personal injury defendants

Morrow, Inc., 173 F.R.D. 271, 273 (D. Or. 1997); see also, e.g., Calderon v. Reederei Claus-Peter Offen GmbH, 258 F.R.D. 523 (S.D. Fla. 2009); Polcaro v. Daniels, 2007 WL 1299159, at *6 (Conn. Super. Ct. 2007).

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of that protection. This Court should review, and ultimately reverse, the decision below so that

personal injury trials do not become lopsided sporting contests in which the plaintiff is in exclu-

sive possession of material information.14

II. ADMITTING EVIDENCE OF OTHER CLAIMS WITHOUT REQUIRING PROOF THAT THOSE CLAIMS AROSE FROM SUBSTANTIALLY SIMILAR INJURIES INCURRED UNDER SUBSTANTIALLY SIMILAR CIRCUMS-TANCES UNFAIRLY EXPOSES DEFENDANTS TO IRRELEVANT, PREJUDI-CIAL EVIDENCE.

There is no dispute that “[e]vidence of prior accidents involving the same instrumentality

is generally relevant to show that . . . the defendant had knowledge of the defect.” Valentine,

687 A.2d at 1162, 455 Pa. Super. at 266. It is, however, black-letter law that “such evidence is

admissible only if the plaintiff first establishes a substantial similarity of conditions between the

prior incident and the incident giving rise to the plaintiff’s cause of action.” Spino v. John S. Til-

ley Ladder Co., 671 A.2d 726, 735, 448 Pa. Super. 327, 346 (1996), aff’d, 696 A.2d 1169, 548

Pa. 286 (1997); see also Mt. Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d

1263, 1274, 2001 PA Super. 232, ¶ 33 (2001), aff’d, 811 A.2d 565, 571 Pa. 60 (2002); Valentine,

14 In concluding that CSXT suffered no prejudice from the denial of post-surgical discov-ery, the panel majority thought it significant that CSXT supposedly “failed to demonstrate how Plaintiff’s physical condition underwent a substantial change after surgery.” App.6. But that assertion is both factually and logically unsound. First, it ignores the fact that plaintiff himself claimed that there was a substantial change in his physical condition after surgery, testifying at trial that he had “more neck pain after the surgery” and that the surgery left him with a “limited” range of motion. 4/25/08 Tr. 43 (R.453a); id. at 45 (R.454a). Second, it requires CSXT to have demonstrated precisely that which CSXT was prevented from demonstrating. The very reason CSXT needed post-operative discovery was to test plaintiff’s assertion that the surgery had failed, i.e., to test plaintiff’s assertion that the surgery had not resulted in a substantial change for the better. Affirming the denial of CSXT’s request for discovery on the ground that CSXT failed to demonstrate the very thing that CSXT sought to establish through discovery is a Catch-22. Preventing CSXT from conducting post-surgical discovery, and thereby preventing CSXT from developing evidence with which it might rebut the testimony of Dr. Grossinger and plaintiff’s other medical experts was especially prejudicial inasmuch as “[t]his trial was,” according to the trial court, “a ‘classic battle of the experts.’” Mem. Supp. of Order Denying Def’s Mots. for J. Notwithstanding the Verdict and/or New Trial, at 3 (App.34). See also supra 18 n.8.

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687 A.2d at 1162, 455 Pa. Super. at 266; Lynch v. McStome & Lincoln Plaza Assoc., 548 A.2d

1276, 1279, 378 Pa. Super. 430, 436 (1988). It is, moreover, well established that the proponent

of such evidence bears the burden of laying the requisite foundation for its admission. Thus,

“[t]he burden is on the party introducing the evidence to establish [substantial] similarity before

the evidence is admitted.” Valentine, 687 A.2d at 1162–63, 455 Pa. Super. at 266 (emphasis

added); see also Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 985, 2005 PA Super.

179, ¶ 18 (2005) (“[t]he burden to prove substantial similarity of other accidents lies with plain-

tiff”), aff’d, 922 A.2d 890, 592 Pa. 38 (2007).

The Superior Court paid lip service to these principles (cf. App.19–20), but applied them

in a manner that renders them effectively meaningless. If the decision below is allowed to stand,

personal injury plaintiffs will, as in this case, be able to introduce evidence of supposedly “simi-

lar” claims that in fact are not similar at all. But, because claims arising from dissimilar injuries

suffered under dissimilar circumstances have no bearing on whether the defendant knew that the

circumstances to which the plaintiff was allegedly exposed might cause the injury plaintiff alle-

gedly suffered, evidence of dissimilar claims is irrelevant. The admission of such evidence vi-

olates Pennsylvania Rule of Evidence 402, which declares that “[e]vidence that is not relevant is

not admissible.” This rule “states a fundamental concept of the law of evidence.” Pa. R. Evid.

402 cmt. Indeed, the categorical exclusion of irrelevant evidence is “‘a presupposition involved

in the very conception of a rational system of evidence.’” Fed. R. Evid. 402 cmt. (quoting James

Bradley Thayer, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 264 (1898)).15

15 Federal Rule of Evidence 402 is identical to Pennsylvania Rule of Evidence 402 in all relevant respects (see Pa. R. Evid. 402 cmt.), and what is said with respect to the federal rule ap-plies equally to the Pennsylvania rule.

30

There is good reason why irrelevant evidence is inadmissible. Irrelevant evidence is dis-

tracting at best and often outright misleading. The admission of irrelevant evidence therefore

presents the “danger that irrelevancies may be mistaken as bearing on the question at hand” and

cause the fact-finder to reach a decision that is “unfounded and inaccurate.” Erica Beecher-

Monas, Reality Bites: The Illusion of Science in Bite-Mark Evidence, 30 CARDOZO L. REV. 1369,

1402 (2009). Thus, the exclusion of irrelevant evidence constitutes “[a]n important element of a

fair trial.” Bruton v. United States, 391 U.S. 123, 131 n.6 (1968).

Yet the decision below not only affirms the admission of irrelevant evidence in this case,

but opens the door to its admission in future cases by effectively nullifying the requirement that

the proponent of prior claims evidence “first establish[] a substantial similarity of conditions be-

tween the prior incident and the incident giving rise to the plaintiff’s cause of action.” Spino,

671 A.2d at 735, 448 Pa. Super. at 346. The Superior Court affirmed the admission of evidence

of 59 prior claims against CSXT even though the trial court did not require that plaintiff, as the

proponent of that evidence, establish the claims’ substantial similarity. Indeed, far from requir-

ing that plaintiff prove the claims’ substantial similarity, the trial court instead placed the burden

on CSXT to disprove their substantial similarity. Thus, when CSXT objected to the introduction

of the list of prior claims—which had been produced in response to an interrogatory that called

for the identification of all prior claims for “spinal” injury allegedly caused by “exposure to

whole body vibration, awkward postures, slack action jolts and shocks, or poor seats” (Plf’s Mot.

Compel, at 2 ¶ 5 (R.56a))—because most of claims listed did not involve neck injuries such as

that claimed by plaintiff, the trial court declared that it would “have to assume that [CSXT] gave

relevant information of the cervical spine” unless CSXT were able to prove otherwise. 4/21/08

Tr. 164 (R.260a). The trial court then compounded its burden-shifting error by proceeding to

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admit the list of 59 claims despite CSXT showing that the majority of claims listed were in fact

dissimilar because they involved “mostly low back cases” brought by “over-the-road folks” (i.e.,

road engineers who, unlike plaintiff, did not work in rail yards). 4/22/08 Tr. 39 (R.275a).16

The trial court held that the list of 59 claims was admissible because, in its view, “a low

back claim” made by a “road engineer” put CSXT on notice that yard engineers such as plaintiff

were, allegedly, at risk of sustaining injuries to their neck. Id. at 39–40 (R.275a–276a).17 But

there is no evidence to support that conclusion. On the contrary, the evidence introduced at trial

16 There can be no doubt that CSXT was prejudiced by the admission of the prior claims evidence. Plaintiff relied on that evidence to support his theory that CSXT was on notice that yard engineers such as plaintiff were at risk of sustaining injuries to their cervical spine. See 4/22/08 Tr. 39–40 (R.275a–276a); id. at 96 (R.310a); 4/25/08 Tr. 132 (R.470a); 5/1/08 Tr. 108 (R.617a). Indeed, in denying CSXT’s post-trial motion, the trial court cited the “records of 59 locomotive engineers who had claims with back problems similar to Mr. Lockley” as proof that CSXT was on notice and therefore negligent. Mem. Supp. of Order Denying Def’s Mots. for J. Notwithstanding the Verdict and/or New Trial, at 16 (App.47); see also id. at 42 (App.73) (hold-ing that “[t]he list of the fifty nine locomotive engineers which was prepared and verified by CSX was relevant to show a pattern of notice to CSX and foreseeability of injury”). There is, moreover, no merit to plaintiff’s argument below that CSXT suffered no prejudice because “[o]ther evidence of notice was also presented.” Plf’s Br. 49. That other evidence—evidence that “CSX was aware of scientific evidence that whole body vibrations could cause spinal inju-ries as early as the 1970s” and that CSXT “knew of other cumulative injury claims” (id.)—was largely if not entirely irrelevant. The evidence associating whole body vibrations with spinal in-juries was irrelevant because the association was with lower back injuries, not neck injuries of the sort allegedly suffered by plaintiff (see, e.g., 4/22/08 Tr. 150 (R.324a); 4/23/08 Tr. 74 (R.376a)), and because, as plaintiff told the jury in closing, this case is “not significantly about vibration” (5/1/08 Tr. 106 (R.616a)). The evidence regarding “other cumulative injury claims”—an allusion to evidence of carpal tunnel and so-called “wear-out” claims (cf. 4/22/08 Tr. 96 (R.310a))—was irrelevant because the case as actually litigated was about plaintiff’s al-leged cervical injury, not his “borderline” carpal tunnel syndrome (cf. 4/23/08 Tr. 15 (R.355a)) and certainly not an ill-defined wear-out claim, which plaintiff never asserted. In fact, precisely because the case as litigated was not about vibration, carpal tunnel syndrome, or wear-out, plain-tiff did not so much as mention the vibration data, carpal tunnel syndrome, or wear-out claims in his closing. He did, by contrast, remind the jury of the “59 locomotive[] engineers” who “have claims out there.” 5/1/08 Tr. 108 (R.617a). Because those 59 claims were unique (albeit irrele-vant) evidence that CSXT was (purportedly) on notice of the risks to which plaintiff’s cervical spine was (allegedly) exposed, the erroneous admission of those claims was indeed prejudicial.17 Ironically, when CSXT’s ergonomics expert, Dennis Mitchell, mentioned certain data pertaining to the lumbar spine, plaintiff’s counsel objected on the ground that “this is an upper back case” and “[h]e is giving us lower back values here.” 4/30/08 a.m. Tr. 38 (R.543a).

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confirms that road engineers and yard engineers are not similarly situated and that the lower back

is subject to different vulnerabilities than the neck. Indeed, plaintiff specifically admitted that

the “work that you do in the yard is different than” that of “the engineers who take trains out of

the yard on long road hauls.” 4/25/08 Tr. 56 (R.457a); see also 4/28/08 Tr. 85 (R.478a) (“[t]he

work of an engineer in the yard” could be “quite different than the work of an engineer on [the]

road”). There was, moreover, evidence that whole body vibration—which was a basis for some

of the claims included in the list—is not associated with neck disorders (see 4/22/08 Tr. 150

(R.324a); 4/29/08 Tr. 38–39 (R.492a–493a); 4/30/08 a.m. Tr. 42–43, 53–54 (R.547a–548a,

R.553a–554a)) but will, if it causes a problem at all, do so “in primarily the lumbar spine, the

lower part of the spine.” 4/30/08 p.m. Tr. 83 (R.562a).

It is therefore plain that the 59 prior claims were not substantially similar to plaintiff’s

claim. As noted above (see supra 9–13, 19–20), plaintiff claims to have suffered “‘a whiplash

injury’” to his cervical spine as the result of “cumulative trauma” caused by “the shocks and

jolts” associated with “rough couplings,” the effects of which were allegedly aggravated by “the

absence of headrests.” Plf’s Br. 6, 32 (quoting 4/22/08 Tr. 90 (R.309a)). A whiplash injury to

the neck is not substantially similar to a lower back injury. As plaintiff’s own experts testified, a

whiplash injury to the neck is caused by head motion relative to the neck; the lower back is simp-

ly not involved. See 4/22/08 Tr. 90 (R.309a); Greene Dep. 76–77 (R.211a–212a); id. at 169

(R.225a); id. at 226–27 (R.237a–238a); id. at 239–40 (R.240a–241a). Moreover, because their

daily work does not involve the constant assembly and disassembly of trains, road engineers, un-

like yard engineers such as plaintiff, are not routinely subject to the “the shocks and jolts” alle-

gedly associated with “rough couplings.” Thus, whatever spinal injuries may have been claimed

by the road engineers whose claims were included in the list of 59 prior claims, those injuries did

33

not occur under circumstances substantially similar to those that allegedly caused plaintiff’s

“cumulative trauma.”

Dismissing these crucial distinctions as “go[ing] to the weight of the evidence and not its

admissibility,” the Superior Court affirmed the trial court’s admission of the prior claims evi-

dence, holding that “there was an adequate foundation to establish” that the prior claims involved

“similar accidents occurring . . . under similar circumstances as the accident in question.”

App.20–21. But that holding, which completely ignores the trial court’s improper burden shift-

ing, drains almost all meaning from the requirement that the proponent of prior claims evidence

“prove substantial similarity” before such evidence is admitted. Hutchinson, 876 A.2d at 985,

2005 PA Super. at 179, ¶ 18. If that requirement is satisfied in this case, as the Superior Court

held, then it will likely be satisfied in almost all cases. By failing to enforce the substantial simi-

larity requirement, the Superior Court has, in violation of Pennsylvania Rule of Evidence 402,

opened the door to the admission of irrelevant—and highly prejudicial—evidence in personal

injury cases. In so doing, the Superior Court has deprived personal injury defendants of “[a]n

important element of a fair trial.” Bruton, 391 U.S. at 131 n.6. This Court should exercise its

supervisory power to ensure that the relevance requirement imposed by Rule 402 does not be-

come a dead letter.

CONCLUSION

For the foregoing reasons, the petition for allowance of appeal should be granted.

Respectfully submitted,

_________________________Evan M. TagerAndrew TauberMAYER BROWN LLP1999 K Street, N.W.Washington, DC 20006(202) 263-3000

34

Ira Podheiser (Pa. ID No. 46973)T.H. Lyda (Pa. ID No. 75629)Stephen A. Hall (Pa. ID No. 84046)BURNS WHITE LLCFour Northshore Center106 Isabella StreetPittsburgh, PA 15212(412) 995-3000

Counsel for Petitioner CSX Transportation, Inc.

Dated: October 13, 2010

35

CERTIFICATE OF SERVICE

I hereby certify that on October 13, 2010, I caused two copies of the foregoing Petition

for Allowance of Appeal, together with the attached appendix, to be served on the following by

first-class mail, which satisfies the requirements of Pa. R. App. P. 121:

Lawrence A. Katz, Esq.Michael J. Olley, Esq.Coffey, Kaye, Myers & OlleyTwo Bala Plaza, Suite 718Bala Cynwyd, PA 19004

David L. LockardDavid Lockard & Assocs., P.C.15 W. Highland Ave.Philadelphia, PA 19118

_________________________Andrew TauberMAYER BROWN LLP1999 K Street, N.W.Washington, DC 20006(202) 263-3000

Counsel for Petitioner CSX Transportation, Inc.

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APPENDIX

Appendix Table of Contents

Page

Opinion of the Superior Court (September 13, 2010) ...........................................................App.1

Opinion to the Honorable Superior Court (June 5, 2009) ...................................................App.26

Memorandum in Support of Order Denying Defendant’s Motionsfor Judgment Notwithstanding the Verdict and/or New Trial (March 30, 2009) ................App.29

Memorandum in Support of Verdict and Judgment Order (March 30, 2009)....................App.107