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Court of Appeal:
42 Years of Experience Qualified Man as Expert Witness
Formal Education in Field Is Not a Criterion, Opinion Says, Reversing Judgment Based on Exclusion of Testimony
By a MetNews Staff Writer
Div. Three of the Court of Appeal—in essence endorsing the axiom, commonly attributed to Julius Caesar, that “experience is the best teacher”—held in an opinion certified for publication yesterday that a person with hands-on experience can be qualified to render expert testimony though lacking formal training in the relevant field.
The opinion, initially filed Sept. 30 and not certified for publication at the time, was authored by Los Angeles Superior Court Judge Nicole Bershon, sitting on assignment. It reverses a judgment, pursuant to a special verdict of a jury, in favor of Union Pacific Railroad.
The lawsuit was brought, pursuant to the Federal Employers’ Liability Act, by Terrence Richard who was working as a brakeman when a train, coming into a railyard, lurched as it came to a stop, throwing him from the rear railcar to the ground. Richard sustained multiple fractures to his ankle, necessitating three surgeries and creating physical limitations.
Bershon said that “it is reasonably probable that a result more favorable to him would have been reached” had Los Angeles Superior Court Judge Gregory W. Alarcon not granted a motion in limine barring the testimony of Richard Hess, retained by Richard as an expert witness. Hess, who was retired, had 42 years of experience as an engineer, including the last 15 years of that time steering a train on the track where the injury occurred.
Proposed Testimony
At a hearing to determine the admissibility of the testimony, Hess, partially relying on a videotape of the train coming to a halt, said the mishap occurred because the engineer, David Pereyra, did not release the brakes and apply the throttle simultaneously, but delayed 24 seconds in performing the latter function, causing the train to lurch.
Alarcon disallowed the testimony, scoffing that Hess “has no training or experience,” adding:
“He doesn’t have any qualifications that the expert witnesses that are going to testify in this case have.”
In rejecting that notion, Bershon pointed to Evidence Code §720(a) which says, in part:
“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.”
Qualified as Expert
She declared:
“Hess’s 42 years of experience as a train engineer qualified him to opine on Pereyra’s handling of the train.”
The acting justice added:
“Hess had experience relevant to the subject about which he was to testify, and his testimony would have been helpful to the jury because it would have assisted the jury in interpreting the video of Richard’s fall and understanding how the locomotive engineer’s actions may have caused a surge at the rear of the train. The exclusion was prejudicial because it left Richard without a witness to testify to what Union Pacific’s locomotive engineer did and why it was dangerous.”
Union Pacific Contention
Union Pacific’s expert witnesses relied upon data from “locomotive event recorders” which the defendant explained in its respondent’s brief “gather comprehensive data regarding operation of the locomotive.”
It argued:
“Not only does Mr. Hess lack expertise in accident reconstruction, but he admittedly lacks training and experience in analyzing event recorder data,” remarking:
“Plaintiff apparently chose not to retain an expert who has the training and experience necessary to fully analyze event recorder data.”
Bershon responded:
“…Hess’s opinion expressly was based on the interpretation of the event recorder data offered by Union Pacific’s expert witness, [Mark] Pollan. That is, Hess’s opinion that Pereyra did not safely operate the train was premised on Pollan’s undisputed testimony that there was a 24-second delay between the time Pereyra released the train brakes and engaged the throttle. While Union Pacific disagreed with Hess about the significance of this data, that disagreement is not a valid basis for excluding his opinion testimony.”
The case is Richard v. Union Pacific Railroad Company, B322044.
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