KEITH A HUBBARD V NATIONAL RAILROAD PASSENGER CORP
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STATE OF MICHIGAN
COURT OF APPEALS
KEITH A. HUBBARD,
UNPUBLISHED
September 7, 2004
Plaintiff-Appellant,
v
No. 246165
Wayne Circuit Court
LC No. 01-115388-NO
NATIONAL RAILROAD PASSENGER
CORPORATION, a/k/a AMTRACK,
Defendant-Appellee,
and
SAUK TRAIL DEVELOPMENT, INC., a/k/a
SAUK TRAIL HILLS DEVELOPMENT, ALLIED
WASTE SYSTEMS, INC., a/k/a ALLIED WASTE
INDUSTRIES, INC., and AUTO CLUB
INSURANCE ASSOCIATION, d/b/a AUTO
CLUB INSURANCE COMPANY and AUTO
CLUB OF MICHIGAN INSURANCE GROUP,
Defendants.
Before: Neff, P.J., and Smolenski and Zahra, JJ.
ZAHRA, J. (concurring in part and dissenting in part).
I concur with the majority’s conclusion that the trial court properly granted summary
disposition in favor of defendant regarding plaintiff’s Locomotive Inspection Act (LIA), 49 USC
20701 et seq., claim. However, I respectfully dissent from the majority’s conclusion that the trial
court erred in summarily dismissing plaintiff’s claim under the Federal Employers’ Liability Act
(FELA), 45 USC 51 et seq. “[A] FELA plaintiff is not impervious to summary judgment. If the
plaintiff presents no evidence whatsoever to support the inference of negligence, the railroad’s
summary judgment motion is properly granted.” Lisek v Norfolk & Western R Co, 30 F3d 823,
832 (CA 7, 1994). Here, the substance of plaintiff’s claim is that defendant was negligent for
allowing the train to be equipped with an engineer’s seat that locked into position, thereby
preventing him from quickly exiting the cab area in the case of an impending collision.
Plaintiff’s theory of liability is properly characterized as a claim involving an alleged design
defect of the cab seat. Because such a theory presents technical issues that are beyond the
common experience and understanding of the average juror, expert testimony is necessary to
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establish a defect. See In re Amtrak "Sunset Limited" Train Crash in Bayou Canot, Alabama, on
September 22, 1993, 188 F Supp 2d 1341, 1349 (SD Ala, 1999); Thirkill v J B Hunt Transport,
Inc, 950 F Supp 1105, 1107 (ND Ala, 1996); Rice v Cincinnati, New Orleans & Pacific R Co,
920 F Supp 732, 736-738 (ED Ky, 1996); see also MRE 702. Plaintiff did not offer a qualified
expert witness, but rather relied on his own testimony and that of other employees of defendant.
Neither plaintiff nor his former coworkers were qualified to testify as design experts, so their
testimony was insufficient to show a design defect. The cases on which plaintiff relies to support
his position that he was not required to support his claim with qualified expert testimony, Taylor
v Illinois Central R Co, 8 F3d 584 (CA 7, 1993), and Sehlin v Chicago, Milwaukee, St Paul &
Pacific R Co, 686 P2d 492 (Wash App, 1984), are factually distinguishable. Given the lack of
expert testimony to support plaintiff’s theory of liability under the FELA, I conclude that the trial
court properly granted defendant’s motion for summary disposition of this claim.
/s/ Brian K. Zahra
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