Preview
FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015
NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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IN RE: METRO-NORTH RAILROAD DEFENDANTS'EXPERT
COLLISION ATVALHALLA, NEW YORK WITNESS DISCLOSURE
FEBRUARY 3, 2015
Index No.: 64924/2015
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PLEASE TAKE NOTICE, the following is defendants METRO-NORTH COMMUTER
RAILROAD COMPANY, METROPOLITAN TRANSPORTATION AUTHORITY, ARGENT
VENTURES, LLC, MIDTOWN TDR VENTURES, LLC, AND STEVEN L. SMALLS
(collectively "Defendants"), response to by their attorneys, LANDMAN CORSI BALLAINE &
FORD P.C., hereby responds to the Plaintiffs' Demand for Expert Disclosure Pursuant to CPLR
§310l(d):
Identity: Foster J. Peterson
Qualifications: Curriculum Vitae is attached hereto.
Subiect Matter of Testimony: A) Mrs. Brody caused this accident by her failure to comply with
New York State Vehicle & Traffic Law; comply with traffic signals; Mrs. Brody stopped past the
stop line within the boundary of the crossing gates; Mrs. Brody exited her vehicle and physically
touched the railroad crossing gate with attached flashing lights; and Mrs. Brody drove her vehicle
forward into the path of the train. B) Stephen Smalls was properly trained and was a certified
locomotive engineer pursuant to FRA regulations; Mr. Smalls operated the train within FRA and
Metro-North regulations and rules. C) Metro-North track inspections were fully compliant with
FRA Track Safety Standards for Class 3 track. D) Metro-North complied with FRA standards in
its creation of its own inspection requirements. E) Metro-Norths M-7 railroad cars complies with
the applicable FRA standards and regulatory requirements. F) Mr. Peterson is also expected to
testify concerning his analysis of the opinions expressed by plaintiffs' purported experts.
Summary of Grounds for Opinions: Mr. Peterson performed his analysis based upon a review
of the documents, witness testimony and photos supplied through discovery (a more specific
schedule of these materials is attached hereto at Exhibit A); review of federal and state regulations;
a site visit; a review of materials prepared by ESI; and his professional experience. Mr. Peterson
may also rely upon testimony and other evidence adduced at trial.
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Analysis:
Accident Location
Commerce Street
Figure 1: Overview of Taconic State Parkway and Commerce Street
(Source: Google Earth Pro Image with ESi annotations)
Commerce Street rail crossing (DOT529902V) consisted of two highway lanes, one in each
direction and two railroad tracks. The crossing was equipped with MUTCD-compliant advanced
warning signs, reflectorized pavement markings, stop bar, flashing lights and gates and traditional
crossbucks. Approximately 109 feet northwest of the crossing, Commerce Street intersects with
Taconic State Parkway, a four-lane highway with two lanes in each direction, running
southeast/northwest. The DOT traffic control system for highway users is interconnected with the
signalization of the railroad crossing to help control traffic flow. Approximately five Mercedes-Benz
SUVs (like Mrs. Brody's) would fit between the northwest edge of the rail crossing and the stop
point on Commerce Street. Figure 2 depicts the northbound approach to Commerce Street
railroad crossing the morning after the event.
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Figure 2: Commerce Street Railroad Crossing
(Source: NTSB Photo 2015-02-0407.32.12.jpg)
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Investigation
At approximately 5:45 p.m., on February 3, 2015, a separate accident on Taconic State Parkway
caused traffic to detour onto Commerce Street, resulting in congested, northwest bound traffic.
Mrs. Brody traveled northwest on Commerce Street where she encountered stop-and-go traffic.
As Brody approached Commerce Street railroad crossing (DOT529902V), she continued
traveling northwest, inching forward until she stopped within the boundary of the crossing, just
short of Main Track 2. Seconds later, the grade crossing warning system activated, lowering the
southeast quadrant gate onto the rear of Brody's vehicle. Brody exited her vehicle, viewed,
examined, and touched the downed railroad gate, then returned to her vehicle, moving it forward,
directly onto Main Track 2, into the path of Metro-North train 659.
Meanwhile, Metro-North train 659, consisting of eight passenger cars, approached the grade
crossing on Main Track 2, traveling northwest at 58 mph in a 60-mph zone. The engineer began
sounding the train horn approximately 1,408 feet prior to the crossing and continued for 17
seconds prior to impact. The engineer placed the train into emergency braking approximately 260
feet prior to the crossing. Speed at time of impact was estimated at 59 mph. After striking the
passenger side of Brody's vehicle, the train and vehicle continued northwest over the crossing,
and struck the electrified third rail on the southwest side of Main Track 2, detaching the third rail.
After detaching, the electrified third rail first pierced Brody's vehicle on its left side under the rear
passenger seats, then pierced its fuel tank, and subsequently exited the vehicle on the right side,
below the frame and behind the right-side rear wheel. As the train and vehicle continued to move,
the third rail was shoved under the left-side, front portion of the lead railcar, between the L1 wheel
and truck body bolster, and subsequently penetrated it from the underside in two locations near
the left-side front passenger doorway. A fire ignited that consumed both the SUV and the interior
compartment of the lead railcar. The train and the vehicle came to rest approximately 665 feet
from the point of collision. An estimated 386 feet of third rail was damaged, including 11 sections
totaling approximately 343 feet that penetrated the passenger compartment of the lead railcar.
At the time of incident, it was dark, with clear visibility and a temperature of 20°F and no
precipitation. The crossing had previously been plowed of the prior day's snow, which left berms
adjacent to the crossing.
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Figure 3 shows the overhead view of the general route Mrs. Brody traveled from Taconic State
Parkway to Commerce Street grade crossing, including four specific MUTCD advanced warning
signs.
Mrs. Brody's Path of Travel
1. RR X-ing Pavement Marking
RR Advanced Warning Sign
Do Not Stop On Tracks
Figure 3. - Overhead View of Path of Travel for Mrs. Brody
(Source: Google Earth Pro with ESi Annotations. Note that Brody Positions are for Positional Reference and
Not to Scale)
Actions of Ms. Ellen Brody
At the time of the incident, Mrs. Brody held a valid New York State Class D, non-commercial
driver's license. The license was initially issued on March 27, 1995. The current license had an
expiration date of March 27, 2020. The license had a corrective lenses restriction. The State of
New York's Vehicle and Traffic Law, Section 1176 and 1170 respectively, speaks to the
requirements of drivers approaching railroad crossings:
Section 1176
Obstructing Highway-railroad Grade Crossings
No person shall drive a vehicle onto the railroad tracks at a highway-railroad grade crossing unless
there is sufficient undercarriage clearance to traverse the crossing and adequate space on the
opposite side of the crossing to accommodate the vehicle he and/or she is driving, notwithstanding
the indication of any traffic control device which would permit him and/or her to proceed.
Sec. 1170
Obedience to Signal Indicating Approach of Train
(a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the
circumstances stated in this section, the driver of such vehicle shall stop not less than fifteen feet
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from the nearest rail of such railroad and shall not proceed until he can do so safely. The foregoing
requirements shall apply when:
1. An audible or clearly visible electric or mechanical signal device gives warning of the
immediate approach of a railroad train;
2.A crossing gate is lowered or when a human flagman gives or continues to give a signal
of the approach or passage of a railroad train;
3. A railroad train approaching within approximately one thousand five hundred feet of the
highway crossing emits a signal audible from such distance and such railroad train, by
reason of its speed or nearness to such crossing, is an immediate hazard; or
4. An approaching railroad train is plainly visible and is in hazardous proximity to such
crossing.
5. Every person convicted of a violation of this subdivision shall for a first conviction thereof
be punished by a fine of not more than one hundred fifty dollars or by imprisonment for
not more than fifteen days or by both such fine and imprisonment; for a conviction of a
second violation, both of which were committed within a period of eighteen months, such
person shall be punished by a fine of not more than five hundred dollars or by
imprisonment for not more than forty-five days or by both such fine and imprisonment;
upon a conviction of a third or subsequent violation, all of which were committed within a
period of eighteen months, such person shall be punished by a fine of not more than seven
hundred fifty dollars or by imprisonment for not more than ninety days or by both such
fine and imprisonment.
(b) No person shall drive any vehicle through, around, or under any crossing gate or barrier at a
railroad crossing while such gate or barrier is closed or is being opened or closed. Every person
convicted of a violation of this subdivision shall for a first conviction thereof be punished by a fine
of not less than two hundred fifty dollars nor more than four hundred dollars or by imprisonment
for not more than thirty days or by both such fine and imprisonment; for a conviction of a second
violation, both of which were committed within a period of thirty months, such person shall be
punished by a fine of not less than three hundred fifty dollars nor more than seven hundred fifty
dollars or by imprisonment for not more than ninety days or by both such fine and imprisonment;
upon a conviction of a third or subsequent violation, all of which were committed within a period
of thirty months, such person shall be punished by a fine of not less than six hundred dollars nor
more than one thousand dollars or by imprisonment for not more than one hundred eighty days
or by both such fine and imprisonment.
(c) 1. Any person convicted of a violation of this section while driving any vehicle carrying
passengers under eighteen years of age, any bus carrying passengers, any school bus or any vehicle
carrying explosive substances or flammable liquids as a cargo or part of a cargo, shall, upon
conviction of a first offense, be guilty of a class A misdemeanor, and shall, upon conviction of a
second or subsequent offense committed within five years of the prior offense, be guilty of a class
E felony.
2. Any person convicted of a violation of this section resulting in an accident which causes physical
injury, as that term is defined pursuant to subdivision nine of section 10.00 of the penal law, serious
physical injury, as that term is defined pursuant to subdivision ten of section 10.00 of the penal
law, or death to another person, shall be guilty of a class E felony.
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(d) Nothing contained in this section shall be construed to prohibit or limit the prosecution of any
violation, crime or other offense otherwise required or permitted by law.
After detouring from Taconic State Parkway, Mrs. Brody turned onto Lakeview Avenue and
proceeded west, toward Commerce Street, where she turned right and headed northwest toward
the Commerce Street grade crossing. Between turning onto Lakeview Avenue and the Commerce
Street grade crossing, Mrs. Brody encountered at least 15 separate MUTCD warning signs
identifying railroad crossings. Figure 4 shows the first 5 of the railroad warning signs.
Figure 4. - Westbound Approach to Lakeview Avenue Grade Crossing
(Source: Google Earth Pro - With ESi Annotations)
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As Mrs. Brody continued northwest on Commerce Street, approximately 600 feet prior to the
incident crossing, she passed the sixth warning sign, a low ground clearance sign. Over the next
500 plus feet, Mrs. Brody encountered seven additional reflectorized warning signs as well as the
warnings from the train's horn and headlights. Figure 5 depicts photographs of the seven warning
signs on the northwest approach to Commerce Street. Additionally, directly in front of Mrs. Brody,
3 more warning signs, including the railroad crossing pavement warning, flashing gate and light
assembly and crossbucks were located with an unobstructed view in the northwest quadrant of
the crossing as seen in the lower right photo of Figure 5.
6. Low Ground Clearanc e -
7. Railroad
8. Rail road A dva nce d Warning
Crossing Pavement
Warning
Rail road C ros sbuc ks/Fla shing
Li ghts/Do wned Gate - Direc tly
In Front of Mrs. Brody
Figure 5: Advance Warning Signs for Traffic Traveling North on Commerce Street
(Source: Google Earth Pro and ESi Animation - With ESi annotations; NTSB 2015-02-0407.32.12.jpg; NTSB
P2051614.JPG)
Police and NTSB investigations revealed that Mrs. Brody had no physical or mental conditions
that may have contributed to the accident. She was a licensed driver in the state of New York and
held a professional job. Although traffic was "bumper to bumper," it did not impede Mrs. Brody's
ability to see the warning signs as she approached. Regardless of whether she was unfamiliar
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with the specific area, the signs she passed are in thousands of locations across the country and
all signify the same meaning around railroad tracks.
In addition to the fifteen preemptive MUTCD traffic signs, Mrs. Brody had notice of a train's
approach when the railroad crossing gate began to flash and lower onto her rear window. Further,
when she exited her vehicle, both the crossing gate and mast lights below the crossbucks would
have been flashing, and train 659's horn would be sounding. Outside of her vehicle, Mrs. Brody
was in the best position to look north and south for approaching trains; witnesses did not mention
she did so. Figure 6 provides two views from Commerce Street crossing looking southeast toward
Lakeview Avenue. The photos were taken the following evening near the same time of night as
the incident.
View Looking In Direction of Train's Approach Outside of Car
Train Headlight
Train Headlight
Angled View Looking In Direction ofTrain's Approach
Figure 6: Commerce Street looking south toward Lakeview Ave
(Source: NTSB Photos P2071710.JPG- P2071709.JPG with ESi Annotations)
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0SC_0018.0PG
Functioning Lights
and Gates
Figure 7: Post-Incident Functioning Lights and Gates at Commerce Street
(Source: MTA PD- Det Connoly Photos - DSC_0018.jpg)
Richard Hope - Eyewitness
A motorist, Richard Hope, was traveling northwesterly on Commerce Street, directly behind Mrs.
Brody. Mr. Hope described that heavy traffic on Commerce Street was "slow and inching along"
and as the two approached the grade crossing, traffic stopped. Hope estimated he was
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approximately 4 feet behind Mrs. Brody's vehicle. A few seconds later, he observed the warning
system gate arm flashing and lowering, with Mrs. Brody's vehicle sitting within the boundary of
the grade crossing.1 It appeared to the witness the gate arm lowered onto the back window of
Mrs. Brody's vehicle and continued sliding downward as it lowered.2 Hope further stated that both
vehicles were stopped when this occurred. Figure 7 depicts the gate arm down and lights flashing
shortly after the incident.
Recognizing Mrs. Brody's vehicle was struck by the crossing gate, Mr. Hope assumed Mrs. Brody
would need to back up so he looked in his rearview mirror, saw no vehicles immediately behind
him, and began backing his vehicle, expecting Brody would do the same. After backing
approximately one vehicle-length, Mr. Hope saw Mrs. Brody exit her vehicle from the driver's seat,
slowly walk to the rear, and touch the gate arm. He characterized the driver's behavior as calm,
and presumed it was because her vehicle was not on the track. He said that the front of Mrs.
Brody's car was "just barely making it," and he believed that the front of the vehicle was very close
to-but not on-the railroad track. Next, after examining the gate arm on the rear of her vehicle,
Brody then turned and made eye contact with Hope. From inside his vehicle, Hope motioned with
his hand for Mrs. Brody to back up. Mrs. Brody turned away from him, walking approximately 3-4
feet from the rear of her car, and re-entered through the driver's door on her vehicle. Mr. Hope
had expected Brody to back up, however, after a slight pause, Mrs. Brody's vehicle moved forward
quickly, approximately one vehicle-length, before the train struck it.3 Mr. Hope could not see if
there was traffic ahead of Mrs. Brody's vehicle that prevented her from moving forward off the
tracks.4 Figure 8 depicts the position of Mrs. Brody's car within the crossing boundary and Mr.
Hope's vehicle behind Brody's.
' Deposition of Richard Hope, 40-41
2 Deposition of Richard Hope, 45-56
3 Deposition of Richard Hope, 62
4 Deposition of Richard Hope, 70
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Figure 8: Position of Mrs. Brody's vehicle within the Crossing Boundary (Not to Scale)
(Source: NTSB Drawing Factual Report Pg. 6 and ESi Animation)
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Mr. Hope was interviewed by the NTSB shortly after the incident and later deposed on November
1, 2018. Below is a synopsis from Mr. Hope's deposition laying out the approximate location and
timing of Mrs. Brody's actions according to Mr. Hope.
Synopsis of Richard Hope's Deposition
1. Stopped, waiting for gates to come down, estimate a couple of seconds- pg. 68
2. Mr. Hope testified he was approximately 4 feet behind the Mercedes SUV. He saw the gate come
down and strike the back window and not lower all the way. This prompted him to back up
approximately one car-length, leaving room for the SUV to reverse. Saw the lady exit her SUV and
go to the back of her vehicle. Made eye contact and again backed-up 4-5 more feet as to show her
there was room for her to reverse. Pgs. 42-50
3. Q: Are you able to estimate for me the amount of time that you saw it stopped at that point until
the lights started flashing?
4. A: Five to Ten seconds. Pg. 40
5. Q: Where in relation to the actual gate did you see the vehicle stopped at that point?
6. A: Where was I in relation to the gate?
7. Q: No, where was the vehicle, the stopped Mercedes SUV, in relation to the gate when you saw
the lights start to flash?
8. A: It was in front of the gate.
9. Q: What part of the vehicle was in front of the gate?
10. A: All of it. Pg. 41
11. Mr. Hope estimates the following- Pgs. 68-70
12. Gate came down and made contact with rear of vehicle - She stays in car for 4 seconds
13. Exits car, walks down close to driver's side, touches gate, turns and makes eye contact with Mr.
Hope, turns wider (4ft) and walks back and enters vehicle. - Total of 20 seconds
14. Gets back in car- In car 4-5 seconds before moving forward.
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Domenic Gentile - Eyewitness
Off-Duty police officer Dominic Gentile was driving on Taconic State Parkway when he was
diverted onto Commerce street like Mr. Hope and Mrs. Brody. As Mr. Gentile approached the
Commerce Street crossing, he noticed a car backing up toward him. The driver of the vehicle had
his arm out the window motioning back and forth. Next, Mr. Gentile noticed a black SUV two cars
in front of him, stopped with the railroad gate arm resting on the back of the vehicle and the lights
flashing red. Like Mr. Hope, Mr. Gentile confirms seeing Mrs. Brody outside her vehicle touching
the gate, then walking back and getting in the driver's seat, and finally saw the black SUV pull
forward, directly in front of the train. Mr. Gentile also confirmed he heard the train horn. Mr. Gentile
was deposed January 25, 2019. Below is a synopsis of that deposition.
Synopsis of Domenic Gentile's Deposition
1. Saw black SUV stopped, didn't think Mrs. Brody was fouling the crossing. Saw Brody walk toward back
of the vehicle. Pg. 47
2. She walked around the back, inspecting the gate arm and rear passenger side of vehicle. Pg. 47
3. Saw Mrs. Brody reach up and touch the arm of the railroad crossing with blinking lights. Pg. 48
4. Estimated Mrs. Brody was out of the car for less than a minute. Pg. 48
5. Estimated from the time Mrs. Brody got back into the vehicle until she pulled forward was "a couple
seconds." Pg. 51
6. Q: Prior to impact, at any time did you hear what you believed to be the sound of any train horn?
7. A: Yes
8. Q: Was it more than one?
9. A: I believe so, yes.
10. Q: Can you approximate when you heard that train horn in relation to the collision in terms of seconds
or minutes or however you want to describe it?
11. A: It was a couple of seconds before, almost a couple of seconds before, to almost immediately right
before the collision.
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Table 1 represents a synopsis of timing and events using the approximate times from the event
data recorder off Metro-North 4332, Metro-North crossing signal downloads and Mr. Hope's
eyewitness account of the incident. Minimally, from 18:25:38 until 18:26:07 (29 seconds), Mrs.
Brody received audible and visual warnings of train 659 from the flashing lights below the cross-
bucks, the flashing lights on the lowered crossing gate, the crossing gate striking the rear window
of her SUV, train 659's headlights and ditch lights and Engineer Small's sounding of the horn on
multiple occasions, including the approximate 20 seconds from 18:25:47 until 18:26:07, where
Mrs. Brody was outside her vehicle and in the best position to recognize the aforementioned
warnings.
Table 1: Synopsis of Events
(Source: EDR 4332; Richard Hope/Domenic Gentile Testimony; Commerce St. Crossing Download)
Timme RRA ction
. M rs. B roiy's cIons
d' A·ti M r. H ope M r. Gen tilI e
18:25:38 Crossing/Gate Mrs. Brody Stopped Past Hope stopped behind
Lights Flashing; White Line Mrs. Brody
Gates
descending-
Crossing
Recorder
18:25:51 Gate Arms Full Strike rear window of Hope still stopped Gentile pulls behind
Horizontal - Mercedes, Mrs. Brody behind Mrs. Brody, Mr. Hope
Crossing exits vehicle backs up a little
Recorder
18:25:52 Mrs. Brody walks to rear of Hope's estimate 4-5 sec Gentile sees Mrs.
vehicle and touches gate Brody walk to rear of
arm car and touch gate
arm
18:25:56 First Long Horn Mrs. Brody turns and looks Hope motions to back
Commerce- in witness Hope's direction up
Loco Event
Recorder
18:26:01 Second Long Mrs. Brody walks back Train Event Gentile estimates
Horn - Loco toward front of car Recorder/Hope Mrs. Brody was out
Event Recorder estimate of her SUV less than
a minute
18:26:07 "Short" Horn - Mrs. Brody gets back in Hope assumes she is Gentile sees Mrs.
Loco Event car going to back up Brody walk back and
Recorder enter the SUV
18:26:10 Engineer Smalls
Places Train In
Emergency-
Loco Event
Recorder
18:26:11 Last Long Mrs. Brody Pulls Forward Hope sees Brody Gentile sees SUV
Whistle by Train Into Path Of Train vehicle pull forward pull forward, hears
- Loco Event train horn
Recorder
18:26:13 Engineer Smalls Mrs. Brody's vehicle struck Hope Views Collision
braces for by train
impact
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Federal Railroad Administration (FRA) Oversight
Federal oversight of the Metro-North Railroad Operations is provided by the Federal Railroad
Administration (FRA), which is part of the US Department of Transportation (DOT). The FRA
employs multiple field inspectors which conduct field inspections on Metro-North property on a
scheduled and random basis. FRA operational field inspectors monitor the railroad's compliance
with DOT regulations per 49 CFR Parts 200 to 299. FRA also conducts periodic records review
on MNR for various federal record keeping requirements. The FRA field inspection data showed
that 616 Operating Practices field operational inspections were conducted on MNR during 2013,
2014, and the months of 2015 prior to the crash. No exceptions were taken. 5
Railroad Operations
Railroad operations in the United States are conducted under the regulations promulgated by the
Federal Railroad Administration (FRA) in 49 Code of Federal Regulations (CFR) Parts 200-299.
49 CFR Chapter 2, Part 217 requires railroads like Metro-North to establish Operating Rules
governing employees, train employees around operating practices, and test employee's
understanding of the rules. Metro-North transportation department employees operating on the
Harlem Line Subdivision, including the crew operating Metro-North Train 659, were governed on
February 3, 2015, by operating manuals that included the Metro-North Operating Rules (MN-400)
last updated with general order No. 202, effective 2/3/15. Also governing train movements was
Metro-North Timetable No.2 effective 11/9/14. The latest Bulletin Order in effect was No.2-57,
effective 2/3/15, as well as General Notice No. 2-66, Operations Notice No. 2-5, and Daily Train
Operations Bulletin Order No. 02-03-15. The train crew operating 659 train was governed by
wayside interlocking signal indications, Cab Signals, and Metro-North operating rules, Rule 11-
Signal Aspects and Indications, specifically Rule No's 11-A, (11-A(1)), 11-B (11-B(1)).
The crash occurred at the Commerce Street Highway-Rail Grade Crossing located in Valhalla,
NY, milepost 26.6 on the Harlem Line of the Metro-North Railroad. The railroad at this location is
multiple main track, allowing trains to travel in either direction on either track. The main tracks are
designated as main tracks 1 and 2, which have an authorized speed limit coinciding with the
above-mentioned rules and FRA Track Safety Standards (49-CFR Ch 2 Part 213.9), Class 3 track
of 60 mph for passenger trains. The railroad at this location is controlled by Centralized Traffic
Control (CTC) from a Metro-North operations control center located in Grand Central Terminal.
CTC is a form of railway signaling that originated in North America circa 1927. Sometimes called
TCS (for Traffic Control System), CTC puts control of signals and switches in the train dispatcher's
hands. The system consists of a centralized train dispatcher's office that controls railroad physical
control points/interlockings and traffic flows in portions of the rail system designated as CTC
territory. Positioned along the railroad right of way are a series of signals which display various
indications, providing engineers authority to operate at designated speeds.
5
NTSB Operations Factual Report
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Train Operations
On February 3, 2015, Metro-North 659 originated from Grand Central Terminal (GCT) with a final
destination of South Shore, New York. The train crew, consisting of engineer Steven Smalls and
conductor Patrick Larkin, performed all required predeparture equipment and air brake tests after
receiving the train at GCT. At approximately 5:45 p.m., train 659, consisting of 8 passenger cars,
departed northbound on track number 2, where their first stop that evening was to be Chappaqua.
After departing GCT, train 659 traveled past their regular control points, past 125 Street and
White Plains Yard. At approximately 6:22 p.m., train 659 received a "Proceed Cab" (the visible
trackside signal outside the cab) at the last control point (CP124) prior to Commerce Street.
The cab signal indication was a "Normal" indication in the control compartment up until the
incident, allowing engineer Smalls to operate up to the maximum authorized speed (MAS) of 60
mph. At the time of the accident, engineer Smalls was in the control-compartment of the lead
railcar, Metro-North 4333, while conductor Larkin was in the train's sixth railcar, Metro-North 4174.
As train 659 approached Valhalla, engineer Smalls sounded his horn for Valhalla station, reduced
his speed to 40 mph for the permanent speed restriction at MP 25.4 and again sounded his horn
for Cleveland Avenue grade crossing. Once the rear of the train cleared the restriction at MP 25.7,
Mr. Smalls increased his speed per timetable allowance as they proceeded toward Lakeview
Avenue crossing. Figure 9 depicts the cab and interlocking signal indications from Metro-North
Operating Rules along with the speed requirements for passenger trains indicated in the Metro-
North Harlem Line Timetable. Mr. Smalls complied with all Metro-North Operating Rules and
Bulletins, as well as 49 CFR Part 213.9.
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Figure 9: Metro-North Signal Aspects and Indications/Timetable
(Source: Metro-North Operating Rules MN-400(2-11) Pgs. 72-73/Bulletin Order HAR 2-51)
Page 17 of 55
4862-4985-31 08v .1
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FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015
NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024
With respect to train speed, in its' guidance on the final rulemaking in 1998 for changes to 49 CFR
Part 213- Track Safety Standards, FRA stated that varying speed changes would create
additional risk to railroad employees and the public.
FRA's current regulations governing train speed do not afford any adjustment of train speeds in
urban settings or at grade crossings. This omission is intentional. FRA believes that locally
established speed limits may result in hundreds of individual speed restrictions along a train's
route, increasing safety hazards and causing train delays. The safest train maintains a steady speed.
Every time a train must slow down and then speed up, safety hazards, such as buff and draft forces,
are introduced. These kinds of forces can enhance the chance of derailment with its attendant risk
of injury to employees, the traveling public, and surrounding communities.6
The FRA guidance goes on to state how reducing train speed for grade crossings does not
necessarily reduce the risk of a collision and that grade crossing safety is a function of adequate
crossing warning systems and highway user attentiveness to those warnings.
As to grade crossings, FRA has consistently maintained that their danger is a separate issue from
train speed. The physical properties of a moving train virtually always prevent it from stopping in
time to avo
Preview
FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ---------------------------------------------------------------- X IN RE: METRO-NORTH RAILROAD DEFENDANTS'EXPERT COLLISION ATVALHALLA, NEW YORK WITNESS DISCLOSURE FEBRUARY 3, 2015 Index No.: 64924/2015 ----------------------------------------------------------------X PLEASE TAKE NOTICE, the following is defendants METRO-NORTH COMMUTER RAILROAD COMPANY, METROPOLITAN TRANSPORTATION AUTHORITY, ARGENT VENTURES, LLC, MIDTOWN TDR VENTURES, LLC, AND STEVEN L. SMALLS (collectively "Defendants"), response to by their attorneys, LANDMAN CORSI BALLAINE & FORD P.C., hereby responds to the Plaintiffs' Demand for Expert Disclosure Pursuant to CPLR §310l(d): Identity: Foster J. Peterson Qualifications: Curriculum Vitae is attached hereto. Subiect Matter of Testimony: A) Mrs. Brody caused this accident by her failure to comply with New York State Vehicle & Traffic Law; comply with traffic signals; Mrs. Brody stopped past the stop line within the boundary of the crossing gates; Mrs. Brody exited her vehicle and physically touched the railroad crossing gate with attached flashing lights; and Mrs. Brody drove her vehicle forward into the path of the train. B) Stephen Smalls was properly trained and was a certified locomotive engineer pursuant to FRA regulations; Mr. Smalls operated the train within FRA and Metro-North regulations and rules. C) Metro-North track inspections were fully compliant with FRA Track Safety Standards for Class 3 track. D) Metro-North complied with FRA standards in its creation of its own inspection requirements. E) Metro-Norths M-7 railroad cars complies with the applicable FRA standards and regulatory requirements. F) Mr. Peterson is also expected to testify concerning his analysis of the opinions expressed by plaintiffs' purported experts. Summary of Grounds for Opinions: Mr. Peterson performed his analysis based upon a review of the documents, witness testimony and photos supplied through discovery (a more specific schedule of these materials is attached hereto at Exhibit A); review of federal and state regulations; a site visit; a review of materials prepared by ESI; and his professional experience. Mr. Peterson may also rely upon testimony and other evidence adduced at trial. 4862-4985-3108v.1 1 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 Analysis: Accident Location Commerce Street Figure 1: Overview of Taconic State Parkway and Commerce Street (Source: Google Earth Pro Image with ESi annotations) Commerce Street rail crossing (DOT529902V) consisted of two highway lanes, one in each direction and two railroad tracks. The crossing was equipped with MUTCD-compliant advanced warning signs, reflectorized pavement markings, stop bar, flashing lights and gates and traditional crossbucks. Approximately 109 feet northwest of the crossing, Commerce Street intersects with Taconic State Parkway, a four-lane highway with two lanes in each direction, running southeast/northwest. The DOT traffic control system for highway users is interconnected with the signalization of the railroad crossing to help control traffic flow. Approximately five Mercedes-Benz SUVs (like Mrs. Brody's) would fit between the northwest edge of the rail crossing and the stop point on Commerce Street. Figure 2 depicts the northbound approach to Commerce Street railroad crossing the morning after the event. Page 2 of 55 4862-4985-3108v.1 2 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 Figure 2: Commerce Street Railroad Crossing (Source: NTSB Photo 2015-02-0407.32.12.jpg) Page 3 of 55 4862-4985-3108v.1 3 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 Investigation At approximately 5:45 p.m., on February 3, 2015, a separate accident on Taconic State Parkway caused traffic to detour onto Commerce Street, resulting in congested, northwest bound traffic. Mrs. Brody traveled northwest on Commerce Street where she encountered stop-and-go traffic. As Brody approached Commerce Street railroad crossing (DOT529902V), she continued traveling northwest, inching forward until she stopped within the boundary of the crossing, just short of Main Track 2. Seconds later, the grade crossing warning system activated, lowering the southeast quadrant gate onto the rear of Brody's vehicle. Brody exited her vehicle, viewed, examined, and touched the downed railroad gate, then returned to her vehicle, moving it forward, directly onto Main Track 2, into the path of Metro-North train 659. Meanwhile, Metro-North train 659, consisting of eight passenger cars, approached the grade crossing on Main Track 2, traveling northwest at 58 mph in a 60-mph zone. The engineer began sounding the train horn approximately 1,408 feet prior to the crossing and continued for 17 seconds prior to impact. The engineer placed the train into emergency braking approximately 260 feet prior to the crossing. Speed at time of impact was estimated at 59 mph. After striking the passenger side of Brody's vehicle, the train and vehicle continued northwest over the crossing, and struck the electrified third rail on the southwest side of Main Track 2, detaching the third rail. After detaching, the electrified third rail first pierced Brody's vehicle on its left side under the rear passenger seats, then pierced its fuel tank, and subsequently exited the vehicle on the right side, below the frame and behind the right-side rear wheel. As the train and vehicle continued to move, the third rail was shoved under the left-side, front portion of the lead railcar, between the L1 wheel and truck body bolster, and subsequently penetrated it from the underside in two locations near the left-side front passenger doorway. A fire ignited that consumed both the SUV and the interior compartment of the lead railcar. The train and the vehicle came to rest approximately 665 feet from the point of collision. An estimated 386 feet of third rail was damaged, including 11 sections totaling approximately 343 feet that penetrated the passenger compartment of the lead railcar. At the time of incident, it was dark, with clear visibility and a temperature of 20°F and no precipitation. The crossing had previously been plowed of the prior day's snow, which left berms adjacent to the crossing. Page 4 of 55 4862-4985-3108v.1 4 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 Figure 3 shows the overhead view of the general route Mrs. Brody traveled from Taconic State Parkway to Commerce Street grade crossing, including four specific MUTCD advanced warning signs. Mrs. Brody's Path of Travel 1. RR X-ing Pavement Marking RR Advanced Warning Sign Do Not Stop On Tracks Figure 3. - Overhead View of Path of Travel for Mrs. Brody (Source: Google Earth Pro with ESi Annotations. Note that Brody Positions are for Positional Reference and Not to Scale) Actions of Ms. Ellen Brody At the time of the incident, Mrs. Brody held a valid New York State Class D, non-commercial driver's license. The license was initially issued on March 27, 1995. The current license had an expiration date of March 27, 2020. The license had a corrective lenses restriction. The State of New York's Vehicle and Traffic Law, Section 1176 and 1170 respectively, speaks to the requirements of drivers approaching railroad crossings: Section 1176 Obstructing Highway-railroad Grade Crossings No person shall drive a vehicle onto the railroad tracks at a highway-railroad grade crossing unless there is sufficient undercarriage clearance to traverse the crossing and adequate space on the opposite side of the crossing to accommodate the vehicle he and/or she is driving, notwithstanding the indication of any traffic control device which would permit him and/or her to proceed. Sec. 1170 Obedience to Signal Indicating Approach of Train (a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop not less than fifteen feet Page 5 of 55 4862-4985-31 08v .1 5 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 from the nearest rail of such railroad and shall not proceed until he can do so safely. The foregoing requirements shall apply when: 1. An audible or clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train; 2.A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train; 3. A railroad train approaching within approximately one thousand five hundred feet of the highway crossing emits a signal audible from such distance and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard; or 4. An approaching railroad train is plainly visible and is in hazardous proximity to such crossing. 5. Every person convicted of a violation of this subdivision shall for a first conviction thereof be punished by a fine of not more than one hundred fifty dollars or by imprisonment for not more than fifteen days or by both such fine and imprisonment; for a conviction of a second violation, both of which were committed within a period of eighteen months, such person shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than forty-five days or by both such fine and imprisonment; upon a conviction of a third or subsequent violation, all of which were committed within a period of eighteen months, such person shall be punished by a fine of not more than seven hundred fifty dollars or by imprisonment for not more than ninety days or by both such fine and imprisonment. (b) No person shall drive any vehicle through, around, or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed. Every person convicted of a violation of this subdivision shall for a first conviction thereof be punished by a fine of not less than two hundred fifty dollars nor more than four hundred dollars or by imprisonment for not more than thirty days or by both such fine and imprisonment; for a conviction of a second violation, both of which were committed within a period of thirty months, such person shall be punished by a fine of not less than three hundred fifty dollars nor more than seven hundred fifty dollars or by imprisonment for not more than ninety days or by both such fine and imprisonment; upon a conviction of a third or subsequent violation, all of which were committed within a period of thirty months, such person shall be punished by a fine of not less than six hundred dollars nor more than one thousand dollars or by imprisonment for not more than one hundred eighty days or by both such fine and imprisonment. (c) 1. Any person convicted of a violation of this section while driving any vehicle carrying passengers under eighteen years of age, any bus carrying passengers, any school bus or any vehicle carrying explosive substances or flammable liquids as a cargo or part of a cargo, shall, upon conviction of a first offense, be guilty of a class A misdemeanor, and shall, upon conviction of a second or subsequent offense committed within five years of the prior offense, be guilty of a class E felony. 2. Any person convicted of a violation of this section resulting in an accident which causes physical injury, as that term is defined pursuant to subdivision nine of section 10.00 of the penal law, serious physical injury, as that term is defined pursuant to subdivision ten of section 10.00 of the penal law, or death to another person, shall be guilty of a class E felony. Page 6 of 55 4862-4985-3108v.1 6 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 (d) Nothing contained in this section shall be construed to prohibit or limit the prosecution of any violation, crime or other offense otherwise required or permitted by law. After detouring from Taconic State Parkway, Mrs. Brody turned onto Lakeview Avenue and proceeded west, toward Commerce Street, where she turned right and headed northwest toward the Commerce Street grade crossing. Between turning onto Lakeview Avenue and the Commerce Street grade crossing, Mrs. Brody encountered at least 15 separate MUTCD warning signs identifying railroad crossings. Figure 4 shows the first 5 of the railroad warning signs. Figure 4. - Westbound Approach to Lakeview Avenue Grade Crossing (Source: Google Earth Pro - With ESi Annotations) Page 7 of 55 4862-4985-3108v.1 7 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 As Mrs. Brody continued northwest on Commerce Street, approximately 600 feet prior to the incident crossing, she passed the sixth warning sign, a low ground clearance sign. Over the next 500 plus feet, Mrs. Brody encountered seven additional reflectorized warning signs as well as the warnings from the train's horn and headlights. Figure 5 depicts photographs of the seven warning signs on the northwest approach to Commerce Street. Additionally, directly in front of Mrs. Brody, 3 more warning signs, including the railroad crossing pavement warning, flashing gate and light assembly and crossbucks were located with an unobstructed view in the northwest quadrant of the crossing as seen in the lower right photo of Figure 5. 6. Low Ground Clearanc e - 7. Railroad 8. Rail road A dva nce d Warning Crossing Pavement Warning Rail road C ros sbuc ks/Fla shing Li ghts/Do wned Gate - Direc tly In Front of Mrs. Brody Figure 5: Advance Warning Signs for Traffic Traveling North on Commerce Street (Source: Google Earth Pro and ESi Animation - With ESi annotations; NTSB 2015-02-0407.32.12.jpg; NTSB P2051614.JPG) Police and NTSB investigations revealed that Mrs. Brody had no physical or mental conditions that may have contributed to the accident. She was a licensed driver in the state of New York and held a professional job. Although traffic was "bumper to bumper," it did not impede Mrs. Brody's ability to see the warning signs as she approached. Regardless of whether she was unfamiliar Page 8 of 55 4862-4985-3108v.1 8 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 with the specific area, the signs she passed are in thousands of locations across the country and all signify the same meaning around railroad tracks. In addition to the fifteen preemptive MUTCD traffic signs, Mrs. Brody had notice of a train's approach when the railroad crossing gate began to flash and lower onto her rear window. Further, when she exited her vehicle, both the crossing gate and mast lights below the crossbucks would have been flashing, and train 659's horn would be sounding. Outside of her vehicle, Mrs. Brody was in the best position to look north and south for approaching trains; witnesses did not mention she did so. Figure 6 provides two views from Commerce Street crossing looking southeast toward Lakeview Avenue. The photos were taken the following evening near the same time of night as the incident. View Looking In Direction of Train's Approach Outside of Car Train Headlight Train Headlight Angled View Looking In Direction ofTrain's Approach Figure 6: Commerce Street looking south toward Lakeview Ave (Source: NTSB Photos P2071710.JPG- P2071709.JPG with ESi Annotations) Page 9 of 55 4862-4985-31 08v .1 9 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 0SC_0018.0PG Functioning Lights and Gates Figure 7: Post-Incident Functioning Lights and Gates at Commerce Street (Source: MTA PD- Det Connoly Photos - DSC_0018.jpg) Richard Hope - Eyewitness A motorist, Richard Hope, was traveling northwesterly on Commerce Street, directly behind Mrs. Brody. Mr. Hope described that heavy traffic on Commerce Street was "slow and inching along" and as the two approached the grade crossing, traffic stopped. Hope estimated he was Page 10 of 55 4862-4985-3108v.1 10 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 approximately 4 feet behind Mrs. Brody's vehicle. A few seconds later, he observed the warning system gate arm flashing and lowering, with Mrs. Brody's vehicle sitting within the boundary of the grade crossing.1 It appeared to the witness the gate arm lowered onto the back window of Mrs. Brody's vehicle and continued sliding downward as it lowered.2 Hope further stated that both vehicles were stopped when this occurred. Figure 7 depicts the gate arm down and lights flashing shortly after the incident. Recognizing Mrs. Brody's vehicle was struck by the crossing gate, Mr. Hope assumed Mrs. Brody would need to back up so he looked in his rearview mirror, saw no vehicles immediately behind him, and began backing his vehicle, expecting Brody would do the same. After backing approximately one vehicle-length, Mr. Hope saw Mrs. Brody exit her vehicle from the driver's seat, slowly walk to the rear, and touch the gate arm. He characterized the driver's behavior as calm, and presumed it was because her vehicle was not on the track. He said that the front of Mrs. Brody's car was "just barely making it," and he believed that the front of the vehicle was very close to-but not on-the railroad track. Next, after examining the gate arm on the rear of her vehicle, Brody then turned and made eye contact with Hope. From inside his vehicle, Hope motioned with his hand for Mrs. Brody to back up. Mrs. Brody turned away from him, walking approximately 3-4 feet from the rear of her car, and re-entered through the driver's door on her vehicle. Mr. Hope had expected Brody to back up, however, after a slight pause, Mrs. Brody's vehicle moved forward quickly, approximately one vehicle-length, before the train struck it.3 Mr. Hope could not see if there was traffic ahead of Mrs. Brody's vehicle that prevented her from moving forward off the tracks.4 Figure 8 depicts the position of Mrs. Brody's car within the crossing boundary and Mr. Hope's vehicle behind Brody's. ' Deposition of Richard Hope, 40-41 2 Deposition of Richard Hope, 45-56 3 Deposition of Richard Hope, 62 4 Deposition of Richard Hope, 70 Page 11 of 55 4862-4985-31 08v.1 11 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 Figure 8: Position of Mrs. Brody's vehicle within the Crossing Boundary (Not to Scale) (Source: NTSB Drawing Factual Report Pg. 6 and ESi Animation) Page 12 of 55 4862-4985-31 08v .1 12 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 Mr. Hope was interviewed by the NTSB shortly after the incident and later deposed on November 1, 2018. Below is a synopsis from Mr. Hope's deposition laying out the approximate location and timing of Mrs. Brody's actions according to Mr. Hope. Synopsis of Richard Hope's Deposition 1. Stopped, waiting for gates to come down, estimate a couple of seconds- pg. 68 2. Mr. Hope testified he was approximately 4 feet behind the Mercedes SUV. He saw the gate come down and strike the back window and not lower all the way. This prompted him to back up approximately one car-length, leaving room for the SUV to reverse. Saw the lady exit her SUV and go to the back of her vehicle. Made eye contact and again backed-up 4-5 more feet as to show her there was room for her to reverse. Pgs. 42-50 3. Q: Are you able to estimate for me the amount of time that you saw it stopped at that point until the lights started flashing? 4. A: Five to Ten seconds. Pg. 40 5. Q: Where in relation to the actual gate did you see the vehicle stopped at that point? 6. A: Where was I in relation to the gate? 7. Q: No, where was the vehicle, the stopped Mercedes SUV, in relation to the gate when you saw the lights start to flash? 8. A: It was in front of the gate. 9. Q: What part of the vehicle was in front of the gate? 10. A: All of it. Pg. 41 11. Mr. Hope estimates the following- Pgs. 68-70 12. Gate came down and made contact with rear of vehicle - She stays in car for 4 seconds 13. Exits car, walks down close to driver's side, touches gate, turns and makes eye contact with Mr. Hope, turns wider (4ft) and walks back and enters vehicle. - Total of 20 seconds 14. Gets back in car- In car 4-5 seconds before moving forward. Page 13 of 55 4862-4985-3108v .1 13 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 Domenic Gentile - Eyewitness Off-Duty police officer Dominic Gentile was driving on Taconic State Parkway when he was diverted onto Commerce street like Mr. Hope and Mrs. Brody. As Mr. Gentile approached the Commerce Street crossing, he noticed a car backing up toward him. The driver of the vehicle had his arm out the window motioning back and forth. Next, Mr. Gentile noticed a black SUV two cars in front of him, stopped with the railroad gate arm resting on the back of the vehicle and the lights flashing red. Like Mr. Hope, Mr. Gentile confirms seeing Mrs. Brody outside her vehicle touching the gate, then walking back and getting in the driver's seat, and finally saw the black SUV pull forward, directly in front of the train. Mr. Gentile also confirmed he heard the train horn. Mr. Gentile was deposed January 25, 2019. Below is a synopsis of that deposition. Synopsis of Domenic Gentile's Deposition 1. Saw black SUV stopped, didn't think Mrs. Brody was fouling the crossing. Saw Brody walk toward back of the vehicle. Pg. 47 2. She walked around the back, inspecting the gate arm and rear passenger side of vehicle. Pg. 47 3. Saw Mrs. Brody reach up and touch the arm of the railroad crossing with blinking lights. Pg. 48 4. Estimated Mrs. Brody was out of the car for less than a minute. Pg. 48 5. Estimated from the time Mrs. Brody got back into the vehicle until she pulled forward was "a couple seconds." Pg. 51 6. Q: Prior to impact, at any time did you hear what you believed to be the sound of any train horn? 7. A: Yes 8. Q: Was it more than one? 9. A: I believe so, yes. 10. Q: Can you approximate when you heard that train horn in relation to the collision in terms of seconds or minutes or however you want to describe it? 11. A: It was a couple of seconds before, almost a couple of seconds before, to almost immediately right before the collision. Page 14 of 55 4862-4985-31 08v .1 14 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 Table 1 represents a synopsis of timing and events using the approximate times from the event data recorder off Metro-North 4332, Metro-North crossing signal downloads and Mr. Hope's eyewitness account of the incident. Minimally, from 18:25:38 until 18:26:07 (29 seconds), Mrs. Brody received audible and visual warnings of train 659 from the flashing lights below the cross- bucks, the flashing lights on the lowered crossing gate, the crossing gate striking the rear window of her SUV, train 659's headlights and ditch lights and Engineer Small's sounding of the horn on multiple occasions, including the approximate 20 seconds from 18:25:47 until 18:26:07, where Mrs. Brody was outside her vehicle and in the best position to recognize the aforementioned warnings. Table 1: Synopsis of Events (Source: EDR 4332; Richard Hope/Domenic Gentile Testimony; Commerce St. Crossing Download) Timme RRA ction . M rs. B roiy's cIons d' A·ti M r. H ope M r. Gen tilI e 18:25:38 Crossing/Gate Mrs. Brody Stopped Past Hope stopped behind Lights Flashing; White Line Mrs. Brody Gates descending- Crossing Recorder 18:25:51 Gate Arms Full Strike rear window of Hope still stopped Gentile pulls behind Horizontal - Mercedes, Mrs. Brody behind Mrs. Brody, Mr. Hope Crossing exits vehicle backs up a little Recorder 18:25:52 Mrs. Brody walks to rear of Hope's estimate 4-5 sec Gentile sees Mrs. vehicle and touches gate Brody walk to rear of arm car and touch gate arm 18:25:56 First Long Horn Mrs. Brody turns and looks Hope motions to back Commerce- in witness Hope's direction up Loco Event Recorder 18:26:01 Second Long Mrs. Brody walks back Train Event Gentile estimates Horn - Loco toward front of car Recorder/Hope Mrs. Brody was out Event Recorder estimate of her SUV less than a minute 18:26:07 "Short" Horn - Mrs. Brody gets back in Hope assumes she is Gentile sees Mrs. Loco Event car going to back up Brody walk back and Recorder enter the SUV 18:26:10 Engineer Smalls Places Train In Emergency- Loco Event Recorder 18:26:11 Last Long Mrs. Brody Pulls Forward Hope sees Brody Gentile sees SUV Whistle by Train Into Path Of Train vehicle pull forward pull forward, hears - Loco Event train horn Recorder 18:26:13 Engineer Smalls Mrs. Brody's vehicle struck Hope Views Collision braces for by train impact Page 15 of 55 4862-4985-3108v.1 15 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 Federal Railroad Administration (FRA) Oversight Federal oversight of the Metro-North Railroad Operations is provided by the Federal Railroad Administration (FRA), which is part of the US Department of Transportation (DOT). The FRA employs multiple field inspectors which conduct field inspections on Metro-North property on a scheduled and random basis. FRA operational field inspectors monitor the railroad's compliance with DOT regulations per 49 CFR Parts 200 to 299. FRA also conducts periodic records review on MNR for various federal record keeping requirements. The FRA field inspection data showed that 616 Operating Practices field operational inspections were conducted on MNR during 2013, 2014, and the months of 2015 prior to the crash. No exceptions were taken. 5 Railroad Operations Railroad operations in the United States are conducted under the regulations promulgated by the Federal Railroad Administration (FRA) in 49 Code of Federal Regulations (CFR) Parts 200-299. 49 CFR Chapter 2, Part 217 requires railroads like Metro-North to establish Operating Rules governing employees, train employees around operating practices, and test employee's understanding of the rules. Metro-North transportation department employees operating on the Harlem Line Subdivision, including the crew operating Metro-North Train 659, were governed on February 3, 2015, by operating manuals that included the Metro-North Operating Rules (MN-400) last updated with general order No. 202, effective 2/3/15. Also governing train movements was Metro-North Timetable No.2 effective 11/9/14. The latest Bulletin Order in effect was No.2-57, effective 2/3/15, as well as General Notice No. 2-66, Operations Notice No. 2-5, and Daily Train Operations Bulletin Order No. 02-03-15. The train crew operating 659 train was governed by wayside interlocking signal indications, Cab Signals, and Metro-North operating rules, Rule 11- Signal Aspects and Indications, specifically Rule No's 11-A, (11-A(1)), 11-B (11-B(1)). The crash occurred at the Commerce Street Highway-Rail Grade Crossing located in Valhalla, NY, milepost 26.6 on the Harlem Line of the Metro-North Railroad. The railroad at this location is multiple main track, allowing trains to travel in either direction on either track. The main tracks are designated as main tracks 1 and 2, which have an authorized speed limit coinciding with the above-mentioned rules and FRA Track Safety Standards (49-CFR Ch 2 Part 213.9), Class 3 track of 60 mph for passenger trains. The railroad at this location is controlled by Centralized Traffic Control (CTC) from a Metro-North operations control center located in Grand Central Terminal. CTC is a form of railway signaling that originated in North America circa 1927. Sometimes called TCS (for Traffic Control System), CTC puts control of signals and switches in the train dispatcher's hands. The system consists of a centralized train dispatcher's office that controls railroad physical control points/interlockings and traffic flows in portions of the rail system designated as CTC territory. Positioned along the railroad right of way are a series of signals which display various indications, providing engineers authority to operate at designated speeds. 5 NTSB Operations Factual Report Page 16 of 55 4862-4985-31 08v .1 16 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 Train Operations On February 3, 2015, Metro-North 659 originated from Grand Central Terminal (GCT) with a final destination of South Shore, New York. The train crew, consisting of engineer Steven Smalls and conductor Patrick Larkin, performed all required predeparture equipment and air brake tests after receiving the train at GCT. At approximately 5:45 p.m., train 659, consisting of 8 passenger cars, departed northbound on track number 2, where their first stop that evening was to be Chappaqua. After departing GCT, train 659 traveled past their regular control points, past 125 Street and White Plains Yard. At approximately 6:22 p.m., train 659 received a "Proceed Cab" (the visible trackside signal outside the cab) at the last control point (CP124) prior to Commerce Street. The cab signal indication was a "Normal" indication in the control compartment up until the incident, allowing engineer Smalls to operate up to the maximum authorized speed (MAS) of 60 mph. At the time of the accident, engineer Smalls was in the control-compartment of the lead railcar, Metro-North 4333, while conductor Larkin was in the train's sixth railcar, Metro-North 4174. As train 659 approached Valhalla, engineer Smalls sounded his horn for Valhalla station, reduced his speed to 40 mph for the permanent speed restriction at MP 25.4 and again sounded his horn for Cleveland Avenue grade crossing. Once the rear of the train cleared the restriction at MP 25.7, Mr. Smalls increased his speed per timetable allowance as they proceeded toward Lakeview Avenue crossing. Figure 9 depicts the cab and interlocking signal indications from Metro-North Operating Rules along with the speed requirements for passenger trains indicated in the Metro- North Harlem Line Timetable. Mr. Smalls complied with all Metro-North Operating Rules and Bulletins, as well as 49 CFR Part 213.9. o it ans.a a . uLipo upo,get, Nev z t wt uat Sh.bar» we ouno 1re I.a. ML. Ar.T3MNo.Atoe MM,Mt rt0 SW0 M TC -- iteonMun «-A Ag'LIL_LIitigtota ta oat ate etettort A wont at ta Mt MaA.I3AMot.Atoo tit pi., tat at tee te it,eet a -- re tat. le er rtad no, r owed +A t! Lt8 Ls • • -£= - -----===--- ta ta EI Ga rt t no d at ha Lae peeawe heat lssscorn«=Fl m @@ tuna er- ptca roe #oet et, et tr at utan • %%---- 8ems a t et ea pcanowere (tee 19- # et at. n 88... Mt.et itate the et - I 4 -- poet at. twee a a ii 0 I Gel ino t at iepa or; • ntca roere ie 6 ... ... Motte ...• ... 6$ - I pocanone i-er et at tot - I tl l e¢Lu Figure 9: Metro-North Signal Aspects and Indications/Timetable (Source: Metro-North Operating Rules MN-400(2-11) Pgs. 72-73/Bulletin Order HAR 2-51) Page 17 of 55 4862-4985-31 08v .1 17 of 61 FILED: WESTCHESTER COUNTY CLERK 04/05/2024 06:00 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 942 RECEIVED NYSCEF: 04/05/2024 With respect to train speed, in its' guidance on the final rulemaking in 1998 for changes to 49 CFR Part 213- Track Safety Standards, FRA stated that varying speed changes would create additional risk to railroad employees and the public. FRA's current regulations governing train speed do not afford any adjustment of train speeds in urban settings or at grade crossings. This omission is intentional. FRA believes that locally established speed limits may result in hundreds of individual speed restrictions along a train's route, increasing safety hazards and causing train delays. The safest train maintains a steady speed. Every time a train must slow down and then speed up, safety hazards, such as buff and draft forces, are introduced. These kinds of forces can enhance the chance of derailment with its attendant risk of injury to employees, the traveling public, and surrounding communities.6 The FRA guidance goes on to state how reducing train speed for grade crossings does not necessarily reduce the risk of a collision and that grade crossing safety is a function of adequate crossing warning systems and highway user attentiveness to those warnings. As to grade crossings, FRA has consistently maintained that their danger is a separate issue from train speed. The physical properties of a moving train virtually always prevent it from stopping in time to avo