Ten90 Solutions LLC

Good things come in threes, or is it bad things?And the third time's the charm, or is it the curse? I forget.  Anyway.... 

As these things go, I wouldn't be surprised if Metro-North decided that prudence dictated it reach some sort of settlement with the locomotive engineer of train 8808 on December 1, 2013, and avoid the risk of a jury trial. 

Now if that jury was made up of a jury of the locomotive engineer's peers-- like other locomotive engineers, like supervisors of locomotive engineers, like actual operating officers and employees of a railroad, that would be the proverbial horse of a different color, and a risk more than worth taking. 

Then the railroad and the plaintiff would be making arguments in front of those who had some understanding of how railroads actually work; how responsibility is assigned;  what a locomotive engineer is required to do first, last, and always in delivering the service, regardless of the presence or absence of any technologies applied to the control of train movements.   

Such a jury could dispense with the testimony of expert witnesses... 

(Usually, when I think I shouldn't say something, I'm right, I shouldn't say it because of possible career repercussions.  But hell's bells, comrades, I've made a career out of, or maybe in spite of saying what I shouldn't have said, from a career perspective that is. Besides I'm a dinosaur, I'm just looking to leave some good looking fossils behind)

So I shouldn't say:  I have no desire to ever be hired as an expert witness in a legal matter involving a railroad. Ever.  No matter what the credentials, the education, the awards, the pedigree of the expert witness, no matter whose side, no matter the testimony, the process itself is the testament to failure.

So I shouldn't say: "could dispense with the testimony of expert witnesses.." like the expert witness deposed by the locomotive engineer's lawyer on June 28, 2018 (available in the public record of case 7:16-cv-09267-VB, Document 85-13). 

In that deposition the expert witness for the plaintiff lists his extensive experience in railroad signal design, positive train control, and automatic cab signal and automatic train control systems.  The expert witness was also employed by FRA as a signal and train control specialist and was "one of eight Federal Railroad Administration signal and train control specialists who were members of a working group composed of industry, government, management and labor representation that produced federal regulations" codified in 49CFR 222, 214, 234, 236, and 236 subpart H, meaning, I guess, he worked with RSAC groups. 

Impressive, no?  Impressive, yes.  I wouldn't ever challenge the witness' status as an expert.

But I do have some questions, like in item 18 of the deposition where the expert asserts that MNR's automatic train control system "unfortunately allows a (built in) 20 mph collision capability at the lower restricted speed level." 

Well, not exactly.  Metro-North's automatic train control equipment caps the numerical velocity of train movement under restricted cab indication to 15 mph, not 20.  Amtrak's automatic train control equipment restricts the numerical velocity of such operation to 20 mph. 

Detail?  Of course.  Everything about safe separation of trains is a detail, is in the details.  It's not the kind of mistake you would expect from an expert in signal and train control. 

And then there's item 20 in the deposition where the expert witness asserts that "8808 was operating into Spuyten Duyvil curve after passing a 'clear' absolute block signal displayed at CP 12."   

Train 8808 could not have passed such a signal at CP 12, because no such signal exists. 

1.CP 12 is a controlled point for which interlocking rules are in effect. 

2.The signals are interlocking signals 

3.The signal aspect at CP 12 displayed for 8808 was a flashing green light. 

4.The name of the signal is "proceed cab." 

5.The indication, the information provided by the signal is "proceed governed by cab signal indication." 

6.It provides precisely no information about block conditions ahead. 

7.Proceed cab can be displayed at control points with a cab signal indicating limited speed, or medium speed or restricted speed.

8.The signal indicated that 8808 could proceed through the interlocking, and only through the interlocking, at the speed authorized by the cab signals not to exceed the maximum authorized speed for that section of track as specified in the timetable, the same timetable that required a speed reduction for 30 mph for operation in the curved.

Again I'm no expert witness, but this is not a mistake you would expect from an expert in signal and train control.

Then there's item 21 where the expert witness claims Federal regulations pertaining to automatic train control systems require slow (civil speed) code rates over diverging, crossover, switch movements within the limits of interlockings. In fact, the regulations require no such thing.  49CFR 234.514 says this, and only this:

The automatic cab signal system shall be interconnected with the roadway-signal system so that the cab signal indication will not authorize operation of the train at a speed higher than that authorized by the indication of the roadway signal that governed the movement of the train into a block except when conditions affecting movement of trains in the block change after the train passes the signal.

The standards for speeds through diverging routes are not set by federal regulation but rather by AREMA, the American Railway Enginerring and Maintenance Association.   

Again I'm not an expert, but this is not a mistake I would expect an expert witness to make. 

 In item 25, the expert witness citing a MNR source states the Spuyten Duyvil curve is a "severe curve that almost approaches a right angle." 

Yes, Spuyten Duyvil is a "severe curve."  No, it does not "approach a right angle."  A right angle is 90 degrees.  No train in the world will negotiate a curve of 90 degrees, at any speed.

Of course the issue is how we measure the curve, and again curves are measured according to AREMA standards, not those of FRA, or those of an expert witness.  Like many things in life, railroad curves are measured in moments, in degrees, minutes, seconds, as a rate.  That rate is determined by the curvature contained in the arc marked off by the two ends of a 100 foot chord. 

Using the actual method by which actual curves are measured, the curve at DV measures 6 degrees, 22 minutes, not 90 degrees, and warrants a 30 mph speed restriction.

This is not an esoteric or alchemical process.  It's simple math, and a method freely available to all, experts and non-experts alike.   

In item 33, our expert witness, citing the testimony of an MNR employee, states:

"G____ testified that there was no specific Federal Railroad Administration prescriptive regulation that specifically required Metro-North or any other railroad in the region to install a civil speed restriction within the traffic control system (TCS) that would have prevented...the derailment on December 1, 2013.  That position is false." 

The expert witness further asserts (items 34, 35) that regulations 49CFR 236.501 and 236.503 require railroads to so apply automatic train control to civil restrictions. 

Here's some meat, let's dig in and chew. 

Required or not, Metro-North did exactly that-- did exactly assign a civil speed restriction of 30 mph with the traffic control system rules governing train movements on the Hudson line. 

Again civil speeds for curves are established by AREMA standards, not FRA. 

The issue is automatic enforcement of the civil speed restriction.  The expert witness claims federal regulations do require such enforcement

So... (1)Metro-North installed its automatic cab signal/train control sytem in 1988 on the Hudson Line and operated that system without major alteration through December 1, 2013. 

(2)During the period 1990-2002, the expert witness worked as a signal and train control specialist in Cambridge, Ma.  Cambridge is the HQ for FRA Region 1. 

(3)FRA Region 1 oversees, among other railroads,  Metro-North. 

(4)At anytime in those 12 years, was Metro-North ever cited by a FRA signal and train control inspector or specialist for violation of federal regulations by not enforcing civil speed restrictions with automatic train control?

(5)Although not an expert I know the answer to that one.  The answer is "no." 

(6) Has FRA anywhere in the country ever cited a railroad for a violation because the railroad did not enforce a civil speed restriction with automatic train control technology?  I'm not an expert, but I'm willing to bet the answer is "no." 

(7) After the derailment of December 1, 2013 did FRA then cite MNR for a violation of regulations because it did not enforce civil speed restrictions with ATC?  Although not an expert, I know the answer to that one.  The answer is "no."

(8) Did FRA when issuing  Emergency Order 29 specifically to MNR, specifically after the Spuyten Duyvil derailment, require MNR to enforce all civil speed restrictions with automatic train control?  Got the answer to that one, too.  Nope, MNR was required to identify all locations were a deceleration greater than 20 mph was required, provide that list of locations to FRA, and adapt its ATC system to enforce those specific speed restrictions. 

(9)When, after the overspeed derailment of Amtrak #188 at Frankford Jct in May 2015, did FRA cite Amtrak's failure to enforce civil speed restrictions with ATC technology?  It did not.  Again FRA only required that Amtrak to identify those areas falling under the "20 mph or greater" rule; provide FRA the list of those locations; enforce the civil speed restrictions in those identified areas with ATC. 

In item 34, the expert asserts that 49CFR 236.501 and 236.503 require speed restrictions for train movements over crossovers in a control (sic) point. 

236.501 states that: 

(b)Automatic train control system shall include one or more of the following features:

(1)Low-speed restrictions............. 

(2)Medium-speed restriction, requiring the train to proceed under medium speed after passing a signal displaying an approach aspect or when approaching a signal requiring a stop, or a stop indication point, in order to prevent an automatic application of the the brakes. 

(3)Maximum-speed restriction, effecting an automatic brake application whenever the predetermined maximum speed limit is exceeded.

Guess what?  MNR complies with one or more of the above, specifically number 2. 

49CFR 236.503 states: 

An automatic train control system shall operate to initiate an automatic brake application when the speed of the train exceed the predetermined rates by the setting of the speed control mechanism.

A predetermined rate is the rate authorized by the cab signal indication.  Metro-North ATC has predetermined rates for limited cab, medium cab, restricted cab signal indications.  "Normal speed," the maximum authorized speed for a section of track, has no predetermined rate. 

The regulation is satisfied when the automatic train control system enforces the speed requirements assigned to the cab signal indications.  The expert witness may not be satisfied, but the regulation, and FRA, are.

Finally, in item 38, the expert witness claims that all Metro-North had to do to prevent the derailment at DV was to take the responsibility for complying with the speed restriction away from the engineer and place it upon the ATC system.  

Right, all anybody has to do to prevent human error is to remove the human being from the operating equation.  Short of that, however, nothing a railroad can, or should, do can or will eliminate the responsibiity of the human being trained, certified, licensed, obligated, and paid to operate a train at the proper speed.   

ATC systems fail.  PTC systems fail.  The technology is immaterial and irrelevant to the responsibility of the operating employee. 

David Schanoes

May 21, 2019

"You must have been adorable..."                                             -K. Blade Runner 2049