Railroad Expert Witness Testimony Evaluating Light Cannon as a Field Test Admitted

Railroad Expert Witness Testimony Evaluating Light Cannon as a Field Test Admitted

Railroad companies were obligated to ensure that locomotive conductors met federal standards of visual acuity, including color vision, before they were permitted to conduct trains, in accordance with 49 C.F.R. § 240.121(c). To comply with these regulations, conductors underwent testing approximately every three years to confirm adherence to the specified vision standards. The federal regulations provided a range of acceptable testing methods, outlined in 49 C.F.R. App. F(4), to assess a conductor’s ability to differentiate between the colors of railroad signals. In cases where a conductor did not pass the test chosen by their employer, they had the option to request further testing, often in the form of a field test, to ascertain their fitness for duty.

Union Pacific Railroad Company initiated its color vision test process by conducting an Ishihara fourteen-plate color vision test, known for its high sensitivity to color-vision deficiencies. If a conductor successfully passed this initial test, recertification to operate trains was granted without any complications. However, if a conductor failed the test, the usual course of action involved progressing to a field test. This field test aimed to assess whether the conductor could safely operate trains despite any color vision deficiency. If the conductor passed the field test, Union Pacific would similarly recertify them for train operation.

Monte Mills (“Mills”), the Plaintiff, served as a conductor for Union Pacific Railroad Company (“Union Pacific”), the Defendant, for a period exceeding twelve years. Throughout this duration, Union Pacific conducted vision tests on Mills on at least three occasions. In the first two tests, Mills did not pass the Ishihara due to a color-vision deficiency. Nevertheless, on both occasions, Mills successfully cleared Union Pacific’s subsequent field test and was recertified.

In 2016, Union Pacific conducted another round of color vision testing for Mills. Once again, Mills did not pass the Ishihara and underwent a subsequent field test. However, by 2016, Union Pacific had introduced a new field test called the Light Cannon. Mills did not pass the Light Cannon test, leading to Union Pacific denying him recertification. Consequently, this denial marked the conclusion of Mills’ employment as a conductor at Union Pacific, despite his history of incident-free work.

On March 21, 2022, Mills initiated a lawsuit against Union Pacific, alleging unlawful discrimination based on disability, contravening § 12112 of the Americans with Disabilities Act (ADA). The legal proceedings advanced through discovery and the presentation of proposed expert witnesses. Subsequently, Mills filed a Motion in Limine, urging the Court to exclude testimony from Union Pacific’s expert witness Steven Fender. Union Pacific, in response, sought summary judgment and submitted a Motion to Strike Testimony from Mills’ Experts Jay Neitz and Kevin Tranngle. Furthermore, on October 10, 2023, Mills filed a Notice of Supplemental Authority, to which Union Pacific objected, promptly requesting the Court to strike the Notice from the record.

Railroad Expert Witness

Steven J. Fender is a seasoned Railroad Transportation/Safety Consultant, bringing an extensive 45 years of experience in the railroad industry. His expertise led him to frequent participation in rule and regulation review and development teams, as well as diverse roles within multi-modal and multi-discipline public safety evaluation teams, task forces, and industry-related projects and programs. Presently, Fender holds the position of Principal at Fender Rail Transportation and Safety Consulting Services, LLC. Prior to this, he served as the Railroad Administrator at the Federal Railroad Administration, where his principal responsibility involved providing guidance and direction for the Federal Railroad Administration (FRA) and the US Department of Transportation (the “DOT”) transportation safety policy and organizational operations. Fender’s educational background includes multiple learning institutions nationwide, attended at various locations, further solidifying his comprehensive knowledge and qualifications in the field.

Occupational Medicine Expert Witness

Dr. Kevin Trangle has over 40 years of experience as a board-certified physician in internal medicine, occupational medicine, and preventive medicine. He obtained his M.D. from the University of Minnesota Medical School and also holds an MBA in Healthcare Management from Case Western Reserve University. His experience encompasses all aspects of occupational medicine including diagnosis and treatment of work-related injuries, disability evaluations, return to work assessments, corporate wellness programs, and substance abuse programs. Trangle is currently a Senior Clinical Instructor at Case Western Reserve University and is the Associate Staff Member at Euclid General Hospital.

Ophthalmology Expert Witness

Dr. Jay Neitz is the E.K. Bishop Endowed Professor in Ophthalmology at the University of Washington in Seattle, boasting a career spanning over 30 years as a research scientist and educator.  He obtained B.A. from San Jose State University and then earned his Ph.D. from the University of California, Santa Barbara. With comprehensive expertise in all facets of eye disorders and their impact on visual performance, Neitz has made significant contributions to the field. His extensive research encompasses a focus on color vision deficiencies, where he has not only developed but also refined various tests and methods for identifying such deficiencies.

Discussion by the Court

Mills moved to exclude the testimony of Union Pacific’s expert, Steven Fender, who served as a Railroad Transportation and Safety Consultant. Fender has a background of working in various positions for the Federal Railroad Administration (FRA) over numerous years. The dispute between the parties revolved around Fender’s proposed testimony, specifically focusing on his evaluation of the Light Cannon as a field test.

Mills argued that Fender’s testimony was neither relevant nor based on a reliable foundation, advocating for its exclusion. Union Pacific countered, asserting that Fender’s testimony was both reliable and relevant. Additionally, Union Pacific contended that Fender’s testimony was crucial as it was seen as dispositive, emphasizing that employers should not face liability for adhering to federally imposed safety guidelines.

The federal regulations in question aimed to ensure train conductors could “recognize and distinguish between the colors of railroad signals.” While providing a list of acceptable color-vision tests, the Federal Railroad Administration (FRA) acknowledged that individuals failing these tests might still be qualified for the role. Notably, the regulations did not mandate specific follow-up tests for those who failed the specified tests, granting railroad companies discretion in evaluating conductor fitness within a defined framework.

After establishing a prima facie case under the ADA, an employer could avoid liability for an alleged discriminatory qualification standard by invoking affirmative defenses such as business necessity or direct threat. Successfully asserting a business necessity defense required the employer to demonstrate that the challenged standard was both job-related, consistent with business necessity, and that reasonable accommodation would not enable performance.

The FRA stipulated that a railroad company’s field test must be “valid, reliable, and comparable” for assessing a person’s ability to safely perform as a locomotive engineer or conductor. Mills argued that determining the validity of the Light Cannon required a medical, scientific inquiry, asserting that Fender lacked the necessary medical background. Despite acknowledging that testimony based on medical or scientific assessment might be more persuasive, the Court did not find Fender’s expertise wholly inappropriate for evaluating the Light Cannon. Fender’s extensive professional history in railroad safety suggested he was well-suited to assess whether a field test mimicked the conditions faced by train operators and whether use of the Light Cannon is at least permissible under federal regulations. While Fender lacked a medical or scientific background, the Court deemed these limitations not severe enough to warrant his disqualification, allowing Mills to address them through cross-examination.

The central issue in this case was whether Union Pacific’s decision not to recertify Mills amounted to disability discrimination under the ADA. Another critical aspect was Union Pacific’s ability to establish an affirmative defense to disability discrimination, potentially involving the determination of business necessity. Fender’s testimony regarding the Light Cannon’s compliance with federal regulations could provide insight for the fact finder on this matter. Mills expressed concerns about potential confusion caused by Fender’s testimony. Despite acknowledging a remote possibility of confusion, the Court was confident that any such issues could be addressed through cross-examination, thus deeming the testimony admissible.

Union Pacific asserted that Fender’s testimony was not only relevant and reliable but also dispositive under Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 573-74 119 S. Ct. 2162, 144 L. Ed. 2d 518 (1999). The Court acknowledged the relevance and reliability of Fender’s testimony but disagreed with Union Pacific’s interpretation of Albertson’s, finding it a stretch. In Albertson’s, the Supreme Court allowed an employer to insist on a specific federal safety regulation, and Union Pacific argued for a similar discretion. However, the Court noted significant differences in the facts, emphasizing that Union Pacific couldn’t opt out of conducting follow-up tests as per governing regulations.

While recognizing railroad companies’ discretion in choosing follow-up tests, the Court clarified that it must align with federal laws, including the ADA. Consequently, Fender’s testimony on the Light Cannon’s compliance with federal regulations was deemed relevant but not dispositive. Mills’ Motion to Exclude Fender’s Testimony was denied. The Court clarified that although federal regulations do not mandate the use of the Light Cannon, Fender’s testimony on the matter is not considered dispositive.

Union Pacific moved for summary judgment, asserting four main contentions: (1) Mills’ claims were time-barred, (2) Mills did not qualify as a “qualified individual” under the ADA and relevant caselaw, (3) Union Pacific had legitimate, non-discriminatory, and non-pretextual reasons for denying Mills return to the conductor position, and (4) Mills could not establish a disparate impact claim.

Union Pacific argued that Mills received a notice of his right to sue in January 2021, citing Mills’ deposition testimony where he affirmed receiving it on or around January 21, 2021. Union Pacific also presented the notice letter from the Equal Employment Opportunity Commission (the “EEOC”), dated January 21, 2021, as evidence. According to Union Pacific, since Mills filed his lawsuit on March 31, 2022, well beyond the ninety-day limit from the alleged notice date, the claim should be considered time-barred.

In contrast, Mills contested receiving the notice and claimed uncertainty during his deposition about what a notice of right to sue entailed. He believed he had received various documents from the EEOC and assumed the notice letter was among them. Mills and his counsel, upon closer examination, could not locate the letter in the EEOC’s file on Mills, raising doubts about its existence and delivery. Both Mills and his counsel submitted sworn declarations supporting their findings.

The Court noted the absence of evidence from Union Pacific demonstrating that the notice letter was indeed mailed to Mills, as required by the mailbox rule. Consequently, the Court concluded that there was insufficient evidence to deem Mills’ claim time-barred.

Union Pacific contended that Mills’ claims should be legally barred as he did not qualify as a “qualified individual” under the Americans with Disabilities Act (ADA). A qualified individual, as per the ADA, is someone possessing the necessary skills, experience, education, and other job-related requirements for the disputed position and can perform its essential functions with or without reasonable accommodation.

Union Pacific argued that since the Federal Railroad Administration (FRA) had approved its administration of the Light Cannon, anyone failing this test did not meet the job-related requirements of the position and, therefore, could not be considered qualified. The Court, however, determined that the issues of whether Mills possessed the required qualifications to be a conductor and if he could perform the essential functions of the role were factual questions.

The Court highlighted Mills’ extensive work history of successfully passing color-vision field tests and accurately identifying railroad signals. Based on these facts, the Court concluded that a jury could reasonably find Mills to be a qualified individual. Consequently, the Court deemed summary judgment on that basis inappropriate.

The Court recognized that being a train conductor is a high-stakes occupation, where some degree of color-vision discernment is deemed important. However, the question of whether Mills’ specific disability is pertinent to the job requirements of a train conductor remained a disputed material fact. Consequently, the Court concluded that summary judgment on that basis was inappropriate.

Union Pacific claimed that Mills could not establish a disparate impact claim for three reasons: (1) lack of statistical evidence supporting his claim, (2) Mills was only “regarded as” having a disability, not having an “actual disability,” and (3) Union Pacific’s use of the Light Cannon was justified by business necessity. The Court determined that the primary purpose of the Light Cannon was to screen out individuals with color vision deficiency, making it unnecessary and wasteful to demand statistical evidence confirming its intended function. Therefore, Mills was not obliged to provide statistical evidence for his disparate impact claim.

Regarding the argument about Mills being “regarded as” disabled, Union Pacific acknowledged this, and since Mills asserted his disability, the Court deemed Union Pacific’s contention insufficient to warrant summary judgment.

In the broader context, Union Pacific failed to conclusively demonstrate that the Light Cannon accurately measured Mills’ actual ability to perform essential job functions or that no reasonable accommodation existed to address any performance deficiency. Consequently, the Court deemed summary judgment on the basis of a business-necessity defense inappropriate.

In his response to Union Pacific’s Motion for Summary Judgment, Mills briefly mentions the Independent Medical Record Review (“the Report”) conducted by two expert witnesses, Jay Neitz and Kevin Trangle (the “Doctors”). Trangle, a Doctor of Occupational Medicine, and Neitz, a Professor of Ophthalmology specializing in color vision and vision disorders, were retained by Mills’ counsel to assess whether the Light Cannon screens out individuals with color vision deficiency who could still safely perform conductor duties. 

Union Pacific moved to strike the Independent Medical Record Review Report from the record and any references to it in Mills’ Response. According to Union Pacific, the Report functions as a transmitter of testimonial hearsay, violating Fed. R. Evid. 703, and the opinions expressed by the Doctors lack a proper foundation, constituting baseless speculation in contravention of Fed. R. Evid. 702. 

The opinion presented by the Doctors in the Report is partially based on a scientific study conducted by Dr. Jeff C. Rabin. The Doctors interpret Rabin’s study to suggest that the Light Cannon fails many individuals who could safely operate trains.

Union Pacific contends that the Doctors, rather than forming independent conclusions, have merely repackaged Rabin’s report and presented it as their own opinion. To support this assertion, Union Pacific highlights that neither Doctor had conducted personal research on the Light Cannon nor even witnessed the administration of a Light Cannon test.

The Court asserted that expert testimony is not required to be founded on personal knowledge but can rely on information that experts in a specific field would consider. Therefore, the Doctors were not obligated to personally study or observe the Light Cannon in operation. Additionally, since Union Pacific did not present any evidence or argument questioning the reliability of Rabin’s study, the Court tentatively concluded that experts in the field of color-vision testing could reasonably rely on the study.

Upon thorough consideration, the Court determined that the Doctors did apply their training and experience to the available sources, reaching an independent judgment. While the Doctors integrated Rabin’s study findings into their analysis, they also conducted an exhaustive review of Mills’ color vision tests history and Union Pacific work safety records. The Court noted that the Doctors’ application of their own expertise is evident in their broader discussion of color-vision testing and their interpretation of Mills’ test results. Consequently, the Court rejected Union Pacific’s first challenge, asserting that the Doctors’ opinions are not mere transmissions of testimonial hearsay.

Union Pacific contended that the Doctors’ conclusions lack a sufficient factual basis for admissibility under Rule 702. The Doctors, in their Report, assert that the Light Cannon, as administered to Mills, “fails anomalous trichromats (individuals with slight color vision defects) who can safely perform their railroad duties”. Additionally, they opined that Mills can “safely distinguish colors necessary” for railroad work. Union Pacific argued that these conclusions lack an appropriate factual foundation.

In addition to the standards outlined earlier, the Court underscored that, in addressing Daubert challenges, its role was not to determine the correctness of the expert’s opinions but to assess whether the testimony held substance and would be beneficial to a jury, as established in Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 960-70 (9th Cir. 2013). Moreover, the Ninth Circuit affirmed that the facts or data required under Rule 702 could encompass the specialized knowledge and experience of the testifying expert, as indicated in Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1024 (9th Cir. 2022).

The Doctors’ opinion on the Light Cannon’s tendency to fail anomalous trichromats, despite their qualification for railroad duties, was grounded in their examination of Rabin’s study, their assessment of Mills’ medical and work history, and their specialized knowledge of anomalous trichromats. Although this factual foundation was subject to potential challenges through cross-examination and opposing evidence, it undeniably existed, contrary to Union Pacific’s assertions. The Court determined that such testimony possessed sufficient substance to be beneficial to a jury, even if it did not conclusively resolve the central issues in the case.

The validity of the Doctors’ opinions on Mills’ color vision remains consistent. Union Pacific contends that the evidence reviewed by the Doctors lacks relevance with regard to Mills’ color vision in 2016. However, the Report clarifies that the Doctors diligently examined Mills’ comprehensive history of color vision testing at Union Pacific. While acknowledging the potential for changes or deterioration in one’s vision over time, the Court determined that Mills’ test history remained pertinent. When coupled with an assessment of Mills’ accident-free work record and the Doctors’ individual expertise in ophthalmology and occupational medicine, the factual foundation for their testimony was evidently sufficient. Any perceived methodological flaws by Union Pacific could be addressed through cross-examination.

On October 10, 2023, Mills filed a Notice of Supplemental Authority with the Court, attempting to bring attention to a federal complaint filed by the EEOC against Union Pacific in Minnesota. The complaint, similar to Mills’ case, alleged that Union Pacific’s use of the Light Cannon violated the ADA. Union Pacific objected to this filing shortly thereafter. The Court, noted that the filing of a complaint did not provide guidance on how to handle Mills’ case, sustained Union Pacific’s objection. Consequently, Mills’ Notice was stricken from the record.


The Court determined that Steven Fender’s testimony could provide relevant information to the fact finder, rendering it admissible. Consequently, Mills’ Motion in Limine was denied. Recognizing unresolved questions of material fact that precluded summary judgment, the Court also denied Union Pacific’s Motion for Summary Judgment. The Court further concluded that Mills’ experts had appropriately applied their expertise to the available materials, establishing a sufficient factual basis to withstand preclusion under Rules 702 and 703. Therefore, Union Pacific’s Motion to Strike was denied. Additionally, the Court sustained Union Pacific’s objection to Mills’ proffer of a recently filed suit against Union Pacific, considering it did not qualify as supplemental authority. As a result, the Notice was stricken from the record.

The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways

In the legal dispute between Monte Mills and Union Pacific, the admissibility of expert testimony played a pivotal role, particularly regarding the compliance of Union Pacific’s Light Cannon color vision test with federal regulations. The Court addressed Mills’ motion to exclude testimony from Union Pacific’s expert, Steven Fender, and allowed its admissibility, deeming it relevant but not dispositive.

Union Pacific’s attempt to strike testimony from Mills’ expert witnesses, Jay Neitz and Kevin Trangle, was rejected by the Court. The Court asserted that expert testimony need not be based on personal knowledge and deemed the Doctors’ opinions sufficiently grounded in their review of studies, Mills’ test history, and their specialized knowledge.

Union Pacific sought summary judgment on multiple grounds, including the timeliness of Mills’ ADA claims, his qualification as a “qualified individual,” and the failure to establish a disparate impact claim. The Court dismissed Union Pacific’s arguments, allowing the case to proceed to trial. Lastly, Mills’ attempt to introduce a Notice of Supplemental Authority regarding a similar EEOC complaint in Minnesota was stricken from the record.

Case Details

Case Caption Mills V. Union Pacific Railroad Co.
Docket Number1:22cv143
CourtUnited States District Court, Idaho
Citation2024 U.S. Dist. LEXIS 9036
Order DateJanuary 16, 2024


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