Opinion
Case No. 3:17cv544
09-15-2020
Michael NOTTKE, et al., Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.
Charles M. Murray, Joseph A. Galea, Dennis E. Murray, Jr., Murray & Murray, Sandusky, OH, for Plaintiffs. Edwin B. Palmer, T. H. Lyda, David A. Damico, Burns White – Pittsburgh, Pittsburgh, PA, for Defendant.
Charles M. Murray, Joseph A. Galea, Dennis E. Murray, Jr., Murray & Murray, Sandusky, OH, for Plaintiffs.
Edwin B. Palmer, T. H. Lyda, David A. Damico, Burns White – Pittsburgh, Pittsburgh, PA, for Defendant.
ORDER
James G. Carr, Sr. U.S. District Judge
This private-nuisance case arises from defendant Norfolk Southern Railway Company's (Norfolk Southern) operations at its Bellevue, Ohio train classification rail yard.
Plaintiffs Michael Nottke and Norman Jacobs (collectively "plaintiffs") own real property adjacent to the rail yard. They allege that Norfolk Southern's operations, expanded in 2015, create extreme noise pollution in the form of continuous high-pitched squeals stemming from the operation of car retarders, even in the dead of night. Car retarders are used as a braking system to slow railcars as they roll down a hump toward their designated track and train classification yard. The metal-on-metal braking action generates a high-pitched screech.
Pending is Norfolk Southern's motion in limine to exclude the expert report and testimony of Dr. Thomas Thunder. (Doc. #71). I held a Daubert hearing and ordered post-hearing briefs from the parties. For the following reasons, I grant the motion. Background
Doc. #90 – Defendant's post-hearing brief to exclude plaintiff's expert's testimony and report.
Doc. #100 – Plaintiffs’ opposition
Doc. #102 – Defendant's reply in support
Doc. #104 – Plaintiffs’ sur-reply
In the 1970s, the U.S. Environmental Protection Agency coordinated all federal noise control activities through its Office of Noise Abatement and Control (ONAC). Tasked with implementing the Noise Control Act (NCA) of 1972, 42 U.S.C. §§ 4901 - 4918 (1988), the EPA engaged in a variety of abatement activities including 1) promulgating noise emissions standards; 2) requiring product labeling; 3) facilitating development of low noise emission products; 4) coordinating federal noise reduction programs; 5) assisting state and local abatement efforts; and 6) promoting noise education and research. See 42 U.S.C. §§ 4905 - 4917.
In 1982, the EPA ended ONAC's funding "as part of a shift in federal noise control policy to transfer the primary responsibility of regulating noise emissions to state and local governments." EPA History: Noise and the Noise Control Act , Environmental Protection Agency (last visited August 26, 2020), https://www.epa.gov/history/epa-history-noise-and-noise-control-act. Despite this, Congress did not repeal the NCA, leaving the EPA with a statutory responsibility to implement it, sans funding. Id.
Incongruously, the EPA regulations implementing the NCA continue to have an ongoing preemptive effect that prevents state and local governments from adopting adequate noise emission standards. Moreover, without funding, the EPA can neither effectively enforce the current regulations, nor amend or rescind them. Consequently, the 1980s regulations control this present-day case.
Norfolk Southern argues that the techniques Dr. Thunder used to assess retarder noise levels are not reliable because 1) he did not comply with the regulatory technique set forth in EPA and FRA promulgated regulations and 2) he inconsistently applied his own technique which lacks scientific rigor.
Standard
The proponent of expert testimony must establish admissibility by a preponderance of proof. Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 592 n. 10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Federal Rule of Evidence 702 governs the admissibility of expert testimony. It provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
In short, the report must "rest[ ] on a reliable foundation and [be] relevant to the task at hand." Daubert, supra, 509 U.S. at 597, 113 S.Ct. 2786. When determining reliability, a district court should consider "whether the reasoning or methodology underlying the testimony is scientifically valid[,]" Id. at 592-93, 113 S.Ct. 2786, rather than on "subjective belief or unsupported speculation." Id. at 590, 113 S.Ct. 2786. While there is no "definitive checklist or test," the Supreme Court has set forth a number of factors that generally "bear on the inquiry." Id. at 593, 113 S.Ct. 2786. These factors include "whether the theory or technique in question ‘can be (and has been) tested,’ whether it ‘has been subjected to peer review and publication,’ whether it has a ‘known or potential rate of error,’ and finally, whether the theory or technique enjoys general acceptance in the relevant scientific community." Best v. Lowe's Home Ctrs., Inc. , 563 F.3d 171, 177 (6th Cir. 2009) (quoting Daubert, supra , 509 U.S. at 594, 113 S.Ct. 2786 ).
The inquiry is flexible and its "focus ... must be solely on principles and methodology, not on the conclusions that the [report] generate[s]." Daubert, supra , 509 U.S. at 595, 113 S.Ct. 2786. District courts have leeway to determine whether expert testimony is reliable, and I have the same broad latitude in how I make that determination. Kumho Tire Co., v. Carmichael , 526 U.S. 137, 141-42, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
Discussion
1. EPA Regulations
Where, as here, the applicable law and federal regulations mandate the use of a particular methodology, I must consider whether the expert's technique complied with those requirements. See Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496, 507 (5th Cir. 1999) (superseded by statute on other grounds ) (discussing Noise Control Act).
The applicable EPA regulations, 40 C.F.R. 201, et seq , set forth emission standards and a technique to measure noise levels to determine compliance with the standards. The car retarder standard states:
[N]o carrier subject to this regulation shall operate retarders that exceed an adjusted average maximum A-weighted sound level of 83 dB at any receiving property measurement location, when measured with fast meter response in accordance with Subpart C of this part.
A "retarder sound" is "a sound which is heard and identified by the observer as that of a retarder, and that causes a sound level meter indicator at fast meter response § 201.1(1) to register an increase of at least 10 decibels above the level observed immediately before hearing the sound." 40 C.F.R. § 201.1(z).
Subpart C provides the "necessary parameters and procedures for the measurement of the noise emission levels" prescribed in the standards. 40 C.F.R. § 201.20.
As an initial matter, noise emission measurements require proper equipment. The regulations require the use of "[a] sound level meter or alternate sound level measurement system that meets, as a minimum, all the requirements of American National Standard (ANSI) S1.4-1971 for a Type 1 (or S1A) instrument[.]" 40 C.F.R. § 201.22(a).
Type I refers to the grade of instrument. A type I instrument is a precision instrument intended for accurate sound measurements in the field and laboratory. A type 2 instrument is less precise than type I and is intended for general field use, typically when high frequencies do not dominate.
A sound level meter that meets the ANSI S1.4 standard will generally have:
a microphone to convert sound pressure signals to electrical signals, an amplifier to raise the microphone output to a useful level, a level range control, frequency weighting to shape the frequency response,
specified exponential time averaging, and an indicating system to display the measured sound level. It will also contain a sensitivity control to allow adjustment of amplification so that an indicated sound level is equal to the sound level produced by an acoustical calibrator and may have output connection to accommodate additional measuring equipment.
(Doc. 77-1, Defendant Exh. 1, Specification for Sound Level Meters. ANSI Standard S1.4-1971 (R1983).
The regulation further directs the user to follow the manufacturer's instructions regarding microphone orientation and position of the observer. 40 C.F.R. § 201.22(a). In addition, § 201.22(b) states that "[a] microphone windscreen and an acoustic calibrator of the coupler type must be used as recommended by: (1) the manufacturer of the sound level meter or (2) the manufacturer of the microphone."
For accuracy purposes, the measurement equipment requires sound weather conditions. Therefore, the user may not take measurements "when the average wind velocity during the period of measurement exceeds 19.3 km/hr (12 mph) or when the maximum wind gust velocity exceeds 32.2 km/hr (20 mph)" or during periods of precipitation. 40 C.F.R. § 201.25.
The tripartite regulation specific to measuring train retarder sounds requires the following:
(1) Microphone. The microphone must be located on the receiving property and positioned at a height between 1.2 and 1.5 meters (4 to 5 feet) above the ground. The microphone must be positioned with respect to the equipment in accordance with the manufacturers’ recommendations for Type I or 2 performance as appropriate. No person may stand between the microphone and the equipment being measured or be otherwise positioned relative to the microphone at variance with the manufacturers’ recommendations for Type I or 2 performance as appropriate.
(2) Data. The maximum A-weighted sound levels (FAST) for every retarder sound observed during the measurement period must be read from the indicator and recorded. At least 30 consecutive retarder sounds must be measured. The measurement period must be at least 60 minutes and not more than 240 minutes.
(3) Adjusted average maximum A-weighted sound level. The energy level for the measured retarder sounds must be calculated to determine the value of the average maximum A-weighted sound level (Lave max). This value is then adjusted by adding the adjustment (C) from Table 2 appropriate to the number of measurements divided by the duration of the measurement period (n/T), to obtain the adjusted average maximum A-weighted sound level (Ladj ave max) for retarders.
2. Dr. Thunder's Methodology
Plaintiffs submitted an expert report (Doc. 71-6, Thunder Report, pgID #1288-1295) from Dr. Thunder – an audiologist and acoustical specialist (Docs. #92-3, Thunder CV, pgID #3798) – stating that the retarder noise exceeds the EPA's eighty-three decibel (dB) noise emission standard set by 40 C.F.R. 201.14. He testified at the Daubert hearing.
Dr. Thunder's report describes how he measured the noise levels. He set up audio recording equipment 1800 feet north of the hump yard. (Doc. 71-6, pgID #1288). Dr. Thunder attached a microphone windscreen to an ANSI type 1 microphone and connected the microphone to a digital recorder. (Id. ). He set the digital recorder's parameters to obtain a recording of the "quality equal to that of a music CD." (Id. ). He recorded a calibration tone at the outset of the recording. (Id. ). The recording system recorded noises for twenty-three hours between 9:00 am on October 6, 2016 to 8:00 am on October 7, 2016. (Id. ).
Dr. Thunder completed a second recording on September 27, 2017, 2400 feet to the south of the hump yard. (Id. at pgID #1289). The recording system recorded noises from 10:46 am to 12:46 pm. (Id. ).
Using "professional-grade audio analysis software," Dr. Thunder analyzed the recordings. (Id. ). He determined that the adjusted average maximum level was eighty-six decibels for measurements north of the hump yard and eighty-two decibels for measurements south of the hump yard. From these calculations, he concluded that "the standard is exceeded at the north location and probably exceeded at the southeastern location." (Id. at pgID #1293).
Norfolk Southern argues that Dr. Thunder failed to adhere to the regulatory requirements for measuring car retarder sounds in several respects: 1) he did not properly identify retarder sounds; 2) he did not use appropriate equipment to measure sound levels; and 3) he did not comply with the regulations with respect to calibrating the equipment.
A. Reliability
I only need to address the first argument to determine that Dr. Thunder's expert report and testimony are not reliable and is inadmissible.
Rather than staying at the recording locations to visually observe a railcar moving through a retarder and marking down the time of that event, Dr. Thunder left the location and returned later to collect the recording. After loading the digital recording into a spectrum analyzer, Dr. Thunder focused on a sixty-minute period between 2:30am and 3:30am. He identified retarder sounds by graphing the sound levels and looking at the peaks on the graph. He testified that "whenever you see a peak on here, the thought is that that is a retarder sound probably. " (Doc. 90, Tr. Hr'g., 200:12-13) (emphasis supplied).
To verify that the peaks on the graph were retarder events, Dr. Thunder could then listen to the digital recording and state whether the noise was a retarder sound. (Id. , Tr. Hr'g., 200:13-18). He testified that, simply by listening to the recording, he could differentiate between retarder sounds, which can last several seconds, and other types of noise, such as a coupling impact that "decays very rapidly." (Id. , Tr. Hr'g., 201:19-24).
Dr. Thunder did admit, however, that brake squeals – sounds a train makes when it brakes, create "a squealing sound much like a retarder would," and are not so easy to differentiate from retarder sounds. (Id. , Tr. Hr'g., 201:25-202:5). He was not concerned with this because "there are no locomotives out there that are in close proximity that are going to do that" and if there are some brake sounds, "they're on a different line" and would be "a lot softer, a lot more diminished than the prominent sounds that you hear from the retarder squeals." (Id. , Tr. Hr'g., 202:5-13).
However, an overview of the yard shows more than just retarders. Dr. Thunder confirmed that in between the retarders and the north recording location there are several tracks for through and departing trains. (Id. , Tr. Hr'g., 295:2-15). Moreover, he admitted that if trains were braking along those tracks, they would generate a brake squeal. (Id. , Tr. Hr'g., 295:21-24).
Train tracks are also present between the retarders and the south recording location. (Id. , Tr. Hr'g., 296:4-5).
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Herein lies the crux of Norfolk Southern's argument: Dr. Thunder was not present to determine with an adequate degree of scientific certainty if any trains ran through the tracks during the recording. By his own testimony, it is difficult for the human ear to differentiate between brake squeals and car retarder squeals, both being metal-on-metal noises resulting from the effort to slow moving railcars. Therefore, post-hoc listening to the recording, without concurrent observation, to determine whether a noise is a car retarder event is not sufficiently reliable. At the hearing, he stated as much:
Q. And you don't know, sir, one way or the other, whether metal-on-metal noises from brake squeal were generated in the Moorman yard on the morning of October 7, 2016 between 2:30 and 3:30 a.m., correct?
A. Correct.
Q. And you can't tell from your data or your graphs whether any of the peaks you identified on either of the days that you tested were noise levels from brake squeal, correct?
A. That's right.
(Id. , Tr. Hr'g. 297:3-12).
Dr. Thunder had dismissed the potential for brake squeals to occur as trains depart from and travel through the yard. Driving this point home, Dr. Thunder also testified that he cannot say, to a reasonable degree of scientific certainty, that every sound included in his calculations of the adjusted average maximum noise level were from car retarder sounds. (Id. , Tr. Hr'g., 297:19-25).
The very foundation for determining whether the retarder sounds exceed eighty-three decibels, the maximum set by the EPA, rests on concrete identification of thirty consecutive retarder sounds. See, 40 C.F.R. § 201.26(a)(2), supra. Simply put, Dr. Thunder cannot say that all the sounds he identified were retarder events, and not brake squeals. Without an objective confirmation that he identified only retarder sounds his subsequent calculations are tainted.
B. Question of Weight or Admissibility
It may be that all the sounds Dr. Thunder used in his calculations were car retarder sounds, but not even he can confidently say so. In the end, his testimony depends on guesswork. Sophisticated guesswork, perhaps – but still guesswork. Indeed, he himself provided three variant calculations during the course of his work, all based on the data he collected from the recordings. That being so, the issue is not one of weight, but of admissibility. See Fed. R. Evid. 702, supra.
Dr. Thunder is certainly qualified as an expert in acoustics and audiology. He has a masters and a doctorate degree in Audiology. (Doc. 92-3, pgID #3798). He is the recipient of numerous awards and is on the board of the American Academy of Audiology Foundation and Rush University's Audiology School Doctoral Board. (Id. , pgID #3799). Moreover, Dr. Thunder's publications are extensive and include a chapter in an industrial hygiene textbook and publications in Transportation Quarterly, a journal published for the American Society of Transportation and Logistics. (Id., pgID #3799-800).
Despite these qualifications, Dr. Thunder's report and testimony are inadmissible because his own recording methodology, i.e, setting up recording his equipment and the leaving the site, resulted in unreliable results. In the end, Dr. Thunder relied on a subjective determination, i.e., listening to the recorded sounds that appear, based on his graphed results from a spectrum analyzer, to be louder, higher-pitched noises, thereby concluding that the noises came from car retarder events, rather than other sources. He eschewed staying at the recording locations, thereby failing to note the presence of any trains moving through or departing from the railyard.
Dr. Thunder testified that the high-pitched squealing noises were car retarder events, and not brake squeals, based on his belief that "there are no locomotives out there that are in close proximity that are going to do that." His own admission that train tracks run through that railyard contradicts this assumption.
Without objective verification – firsthand, on site observation – that trains were not going through the railyard, Dr. Thunder cannot say with a requisite degree of confidence that the metal-on-metal squeals heard in the recordings were from car retarder events because, as he admits, the human ear cannot easily differentiate between those events and brake squeals. Moreover, he testified that he does not know whether any trains passed through the rail yard, thereby generating brake squeals or that he could differentiate reliably between those two different high-pitched squealing noises by looking at the graphed noise levels.
Consequently, he bases his report on his subjective and necessarily speculative opinion that he recorded at least thirty consecutive car retarder events. The testimony does not rest on a reliable foundation. Instead, likelihood is that his recording indiscriminately captured car retarder events and brake squeals, thereby contaminating any subsequent noise level calculations. That he cannot state with scientific certainty that the high-pitched squeals came from car retarder events and not brake squeals further denigrates the reliability, and thus, the admissibility of his methodology.
Conclusion
For the foregoing reasons, it is hereby
ORDERED THAT defendant's motion in limine (Doc. 71) be, and the same hereby is granted.
The clerk shall forthwith schedule a status/scheduling conference.
So ordered.