On January 4, 2023, 74-year-old Bonnie Thurston, accompanied by her grandchildren, Hailey and Roger Thurston, was riding a WMATA Metrorail train to Reagan National Airport. The train halted before reaching the station platform. Without any announcement of arrival or door opening, Thurston, observing the platform, stood up without holding onto any train supports. The train then moved forward to fully berth at the station, causing Thurston to fall and suffer injuries to her left femur and hip.
The central liability questions are: (1) whether the train operator was obligated to announce the train’s intended movement for re-berthing, thus warning passengers to secure themselves, and (2) whether such an announcement was, in fact, made.
Thurston subsequently filed a negligence lawsuit against WMATA on May 17, 2024. Following the conclusion of discovery, WMATA moved to exclude Thurston’s liability expert, Dr. Carl Berkowitz. WMATA contends that Berkowitz’s testimony should be barred due to his alleged failure to establish a national standard of care and the perceived lack of factual basis for his opinions.
Transportation Engineering Expert Witness
Carl Berkowitz, PE, Ph.D., AICP, a transportation and traffic engineering expert, has been providing litigation consultation since 1997. His 49 years of experience make him a highly sought-after advisor, particularly at the outset of potential litigation. He offers impartial evaluations that can significantly influence the course of a case. By assessing the technical strengths and weaknesses, he helps clients determine the feasibility of legal action. Berkowitz’s extensive background and experience enable him to provide valuable contributions at every stage of litigation.
Discussion by the Court
WMATA sought to exclude expert testimony from Berkowitz, arguing he failed to establish a national standard of care. Thurston countered, asserting that Virginia’s established standard for common carriers, not a national standard, was applicable. She further argued that, even if a national standard were relevant, Berkowitz’s testimony satisfied it.
The Court emphasized that Virginia law does not recognize a national standard of care in common carrier tort cases. Instead, Virginia mandates that common carriers exercise “the highest degree of practical care” for passenger safety. Therefore, the Court deemed Berkowitz’s ability to articulate a national standard irrelevant. His expertise was sufficient to explain to the jury what constitutes “the highest degree of practical care” under Virginia law.
Furthermore, the Court reiterated the established Virginia principle that a party cannot unilaterally define its own standard of care through internal rules. Consequently, Berkowitz was prohibited from referencing WMATA’s Standard Operating Procedures (SOPs) during his direct examination.
In Murphy v. United States, 383 Fed. Appx. 326, 335 (2010), it was held that procedure manuals cannot be introduced to show standard of care.
Analysis
The Court determined that Berkowitz’s opinions are primarily grounded in his extensive experience within the transit industry. This experience includes his employment with various transit authorities, his participation in transit-related committees, and his sustained involvement in the public transportation community. He also gathers information through discussions with industry professionals and his review of transit system standard operating procedures and training manuals.
Based on this expertise, Berkowitz is qualified to testify regarding the appropriate standard of care for a train operator who must re-berth a train that has partially stopped within a station platform. However, the Court found that Berkowitz lacks sufficient foundation to testify about other areas covered in his expert report, such as falling mechanics, jerk rates, system failures, and national standards of care. Therefore, he is precluded from offering opinions on these topics.
Furthermore, Berkowitz is prohibited from presenting factual conclusions about the specific incident in question. This restriction is to avoid encroaching on the jury’s role as the fact-finder.
Held
The Court granted in part and denied in part the Defendant WMATA’s motion to exclude Plaintiff’s liability expert. Dr. Carl Berkowitz may testify only about the standard of care required of a train operator who needs to reposition or “re-berth” a train that has come to a stop partially within a station platform.
Key Takeaway:
The Court ruled that Virginia law dictates the “highest degree of practical care” rather than a national standard, and that the expert’s experience qualified him to testify on this standard specifically regarding re-berthing procedures. However, the expert was restricted from referencing WMATA’s internal procedures or testifying on other matters outside his specific expertise, ensuring he stayed within his qualified area and did not encroach on the jury’s role. Ultimately, the Court allowed the expert to testify narrowly on the standard of care for re-berthing, while excluding his testimony on other topics.
Case Details:
| Case Caption: | Thurston V. Washington Metropolitan Area Transit Authority |
| Docket Number: | 1:24cv832 |
| Court: | United States District Court, Virginia Eastern |
| Order Date: | March 14, 2025 |
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