On July 13, 2021, Mark DeLeon lost his left arm in a horrendous accident while working the overnight shift at Norfolk Southern’s Burns Harbor Trainyard. This case arises out of that tragic event. DeLeon sued Norfolk Southern under the Federal Employer’s Liability Act seeking recovery for his injuries. He has two theories under FELA: one is for general negligence; the other is for per se negligence under FELA because of an alleged violation of the Safety Appliance Act (“SAA”).
Daniel R. Billington II is an expert in accident reconstruction, including “human factors, visibility, and lighting.” Billington has been doing accident reconstructions for decades and has been permitted to testify in a number of cases. His knowledge has made him a speaker in high demand with many legal and insurance organizations.
Colon Ray Fulk has over three decades of experience in train operations. Notably, he has worked for Norfolk as a conductor, brakeman, locomotive engineer, and a foreman. He has extensive experience in railroad operations, including safety inspections and investigations.
Jason R. Engle has 18 years of experience in the railroad industry, holding both mechanical and transportation positions at multiple railway companies.
The Court agreed with Norfolk that the expert reports of Billington, Fulk, and Engle had some improper legal conclusions. Billington, Fulk, and Engle all stated that certain facts constitute a statutory violation and/or negligence. These conclusions “abridge the jury’s role of applying the law to the facts” and, additionally, “usurp the judge’s role of instructing the jury as to the applicable law.”
The experts will not be allowed to testify as to what satisfies a specific legal standard or what a particular statute or regulation means. However, of course, experts may offer opinions “relevant to applying a legal standard” including testimony “describing sound professional standards and identifying departures from them.”
1. Daniel Billington
Billington inspected the site of the incident, took various measurements, and reviewed the footage from the night in question, along with an extensive list of documentary evidence and depositions in this case. He concluded, among other things, that DeLeon struck the air station during the incident in question, that the air station was a close-clearance structure, that the yard was too dark, which posed a danger to employees, and that the bent ladder prevented DeLeon from standing upright, contributing to him hitting the air station.
Billington took detailed and specific measurements at the railyard, including quantifiable lighting measurements under similar weather and time conditions, and he used his experience and measurements to produce a 3D render of the accident to explain how this tragic and perplexing incident occurred.
The Court found that Billington was qualified to testify on these topics and that his inspection of the site, reliance on his experience, and review of the documents constituted a proper methodology for an accident reconstructionist.
One argument Norfolk made that requires special attention is that Billington’s accident reconstruction testimony would not be helpful to a jury. The argument centers on the fact that much of his accident reconstruction is based on the video of the incident, which the jury can watch itself.
This Court has watched the video of the incident several times. It does not speak for itself. The camera was set up far away from the site of the incident. The video is dark, at times blurry, and in black and white.
2. Colon Fulk
Fulk reached various conclusions about the safety of the train yard on the night of the incident, the safety rules Norfolk had in place at the time, and the factors that may have contributed to the accident. He testified about how difficult it is for on-the-ground railmen to know exactly how fast a train is going, especially in nighttime conditions, and opined that it was unsafe for Norfolk to have a rule allowing railmen to board moving trains at all. He testified about many other issues as well, including the dangers posed by the defective ladder and insufficient lighting at the railyard. In reaching his conclusions, he relied not only on the documentary evidence in this case but also on his inspection of the site of the incident.
Norfolk’s main arguments to exclude Fulk’s opinions are that he lacked a reliable methodology and that his opinions are conclusory. However, the Court found that he has employed a proper methodology for an expert in his field and has explained his reasons sufficiently. He reviewed the records relevant to the incident, and inspected the site of the incident, taking specific measurements and photos, and explained the reasons for his findings in an expert report. This is not an area of expertise where, for example, an expert could point to specific mathematical methodology for his opinion. Fulk’s methodology and opinions (that are not legal conclusions, as discussed above) are proper, and are similar to many other cases in which he has been allowed to testify over the years.
3. Jason Engle
Engle’s conclusions include that the bent ladder was unsafe, that the railcar with the bent ladder should not have been in service until the ladder was fixed, and that Norfolk had insufficient, and at times even actively dangerous, safety procedures.
Norfolk’s argument to exclude Engle is a bit shorter and refers to or mirrors the arguments on Fulk, namely that the expert lacks methodology and has conclusory opinions.
The only notable difference is that they admit that Engle provided some “additional detail” compared to Fulk. Like Fulk’s expert report, Engle’s expert report exhibited that he has relevant, specialized experience and that he employed a reliable methodology.
Held
The Court granted in part and denied in part Norfolk’s omnibus motions in limine to exclude the causation opinions of experts Daniel Billington, Colon Fulk, and Jason Engle.
Key Takeaway
Indeed, courts often exclude expert testimony analyzing videos when a jury is just as capable of doing the same thing. While Norfolk argued that Billington brought no more to the table on this issue than a layperson who watches the video, a review of Billington’s report tells a different story.
Billington relied on his extensive experience in accident reconstruction, used video enhancement techniques to view it more closely, employed the study of kinematics in his analysis, did an in-person inspection of the incident site, and produced a 3D model of the incident to help explain what happened. Billington has provided an analysis that goes way beyond a simple recounting of what he believes the video depicts. And to the extent Norfolk is dubious of Billington’s opinions, that’s what cross-examination is for.
Plaintiff Justin W. Hedden brought suit against Toledo Peoria & Western Railway, Corp. and its corporate parent Genessee & Wyoming Railroad Services, Inc. for injuries he sustained while working on the railroad.
Defendants sought an order excluding the opinions of Hedden’s expert, John David Engle.
Railroad Expert Witness
John David Engle worked in the railroad industry for decades. Engle has a long history of working in the railroad industry and testifying as an expert witness in FELA matters. He has worked as a carman, technical instructor, training officer, and air brakes superintendent for Norfolk Southern.
Engle’s first opinion relates to whether the hand brake was “efficient.” The Court found that Engle’s expert report is devoid of any explanation of the methodology he used in reaching his opinion that the hand brake was inefficient. Engle did not inspect the hand brake at issue in this case. Moreover, he did not have a clear theory as to what made the hand brake fail to release when Hedden pulled on it with the brake stick.
Not only did he lack a sufficiently reliable methodology for this opinion, but what methodology he did have reveals that his testimony would not be helpful to the jury. Engle admitted that his opinion as to the “condition of the hand brake at the time of the incident” relies “solely on Hedden’s description of the hand brake.”
With no analysis of the hand brake, nor a clear theory as to why it was defective and thus inefficient, Engle’s opinion here boils down to “his belief that Plaintiff’s account of the incident is true.”
2. Opinion 2: TPW Failed to Inspect and Maintain the Railcars
In his second opinion, Engle asserted that TPW failed to inspect and maintain the railcars “because the freight car hand brake did not function as intended.”
First, there is literally no explanation or analysis in Engle’s report as to how he arrived at that opinion. In other words, it is entirely conclusory. He simply stated that, because the hand brake did not function as intended, TPW must have been failing to inspect and maintain the railcars. There is no discussion, for example, of what would constitute proper and regular inspections or an analysis of TPW’s maintenance protocol.
Second, like the previous opinion, this opinion appears to be wholly based on Hedden’s account of the Incident. It includes no mention or citation to any further investigation by Engle of additional sources, such as TPW’s regular inspection or maintenance practices for railcars. Since his opinion here rests “solely on his acceptance of Plaintiff’s account, the testimony amounted to nothing more than an invitation to the jury to believe his assessment of Plaintiff’s truthfulness” and is thus inadmissible. Third, since the Court has already found that he cannot testify as to whether the brake was efficient or had a defect, and this opinion builds directly on that premise, this opinion now has no admissible support and is thus itself inadmissible.
3. Opinion 3: The Railcar Involved in the Incident Was Not Properly Identified and Therefore Not Properly Inspected
Engle’s third opinion is that the freight car involved in the Incident was not properly identified and therefore could not have been properly inspected.
Engle primarily relied on two key data points in arriving at this opinion. The first is that Hedden and Cardine were told to move the train to the lift, which required them to finish building the train after the Incident and then moved it to its next destination, which made it difficult to figure out which railcar was involved in the Incident. Indeed, he cited to Meyer’s deposition where Meyer admitted that, because he was uncertain as to which railcar was involved, he had to narrow it down to five cars and inspect all of them. The second was that the railcar involved in the Incident was a lighter color than any of the ones Meyer inspected.
Starting with his methodology, Engle’s reasoning relies on a few different sources, as well as his experience in railyard operations. Engle has experience in building and moving trains in railyards and can testify as to how this can make identifying a particular railcar difficult. While he partially walked back his second reason for this opinion, the opinion still finds support in his first reason: that the continued building and movement of the train made Meyer’s identification of the correct railcar questionable.
A railcar could match the description and still be the wrong car, and Engle is qualified to explain why. A railyard is a complicated and complex environment. It will be helpful to jurors to have testimony about that environment so the jury can assess whether Defendants did in fact inspect the wrong railcar.
4. Opinion 4: The Inspection of the Hand Brake was Deficient because Meyer did not use a Brake Stick on It
Engle’s fourth opinion is that the inspection of the railcar was deficient because Meyer did not use the brake stick Hedden was using, or indeed, any brake stick, on the hand brake as part of the inspection.
Defendants alleged that Engle lacked sufficient expertise specifically about brake sticks to make this opinion that a proper inspection would have used one.
Engle’s opinion relates primarily to what constitutes a proper inspection. Engle asserts that a proper inspection would have recreated the conditions of the Incident, which, in this case, would have meant using a brake stick on the hand brake. Even if Defendants are right that Engle is not sufficiently experienced with brake stick usage specifically, that does not mean his opinion that a proper inspection would have used one to recreate the conditions of the Incident is invalid. He has sufficient expertise in railyard operations to testify as to what he believes would have constituted a proper inspection and has provided sufficiently reliable reasoning for this opinion.
5. Opinion 5: TPW failed to Properly Train Its Employees
Engle’s last opinion is that TPW failed to properly train certain employees, including Hedden, on how to perform interchange inspections, including specifically on the hand brake and air brake systems and the associated riggings.
Defendants asserted that Engle’s opinion here is essentially insisting that transportation employees like Hedden be trained on brake systems like mechanical employees and that, in any event, Hedden was not following the safety rules in the events leading up to the Incident.
Unlike Engle’s opinion regarding the hand brake, his opinion on training “does not require Engle’s physical examination of the hand brake” and Defendants’ arguments do not suggest that his “methodology is unreliable.” Instead, they focus more on his outcome, asserting that the high level of training Engle asserts is necessary is “a nonsensical proposition.” But the Court, as gatekeeper, is “primarily concerned with methodology, not conclusions.”
Held
The Court granted in part and denied in part Defendants’ motion to exclude the testimony of John David Engle.
Key Takeaway
The Court focuses on principles and methodology, not on the conclusions they generate. The goal of the Rule 702 inquiry “is to assure that experts employ the same ‘intellectual rigor’ in their courtroom testimony as would be employed by an expert in the relevant field.”
This action arises from a train derailment in Lund, Utah on July 15, 2021, in which Plaintiffs Larry Keatley, Wirgil Rask, and Matthew Lindley (collectively, “Plaintiffs”), were operating the train as Defendant’s employees.
Plaintiffs asserted a claim against Defendant under the Federal Employers’ Liability Act and alleged that the Plaintiffs’ injuries were due to the negligence of the Defendant UPR in failing to provide Plaintiffs with safe tools and equipment and a safe place to work.
Defendants sought to exclude the entire testimony of Plaintiffs’ expert witness, Alan Pagels. Defendant also sought to exclude the portion of Plaintiffs’ expert witness Charles Culver‘s testimony that relates to his opinion on Defendant’s failure to stop or slow the train.
Railroad Expert Witnesses
Alan Pagels is a practicing railroad safety consultant with 45 years of railroad industry experience, of which he served 8 years and 5 months with the Federal Railroad Administration (FRA) as a Track Safety Inspector and Specialist – Rail Integrity.
Charles L. Culver is an expert in train handling and railroad operations in federal and district courts throughout the United States.
He been certified as a designated supervisor of locomotive engineers, a freight conductor, and a locomotive engineer and has been qualified as an instructor of Operating Rules, Safety Rules, and Air Brake and Train Handling Rules applicable to trainmen and engineers through his training with Union Pacific Railroad.
Pagels is set to testify to “issues of liability and causation involved in the subject incident, including but not limited to track conditions where the subject incident occurred.”
According to Pagels, Defendant failed to comply with 49 C.F.R. § 213.33, the regulation prescribing appropriate drainage for roadbeds. Moreover, Defendant also did not comply with FRA Track Safety Standards and its own standards for conducting special inspections for severe weather, despite the weather alerts issued by the National Weather Service.
Analysis
The Court held that Pagels’ testimony is admissible to the extent that it relates to Plaintiffs’ claims that Defendant negligently placed the track and failed to warn Plaintiffs as to the risk of flooding and derailment at the derailment track location.
Pagels can testify to the general requirements for waterflow set forth by the FRA and whether the geographic location posed an unreasonable risk of flooding to the extent that such testimony relates to Plaintiffs’ allegation that Defendant knew or should have known the track location was subject to flooding. Pagels’ testimony regarding Defendant’s failure to comply with FRA Track Safety Standards and Defendant’s internal standards for conducting special inspections for severe weather is only admissible to the extent that it relates to Defendant’s failure to warn of imminent flooding or the risk of derailment.
Moreover, he may testify that Defendant is “responsible for determining where its crews operate trains and is responsible for ensuring its crews have a safe place to work” to the extent it relates to Plaintiffs’ claim of negligent track placement or failure to warn.
However, Pagels may not testify to the specific requirements of 49 C.F.R. § 213.33 and Defendant’s alleged failure to comply with such requirements, as negligence per se was not alleged in the operative complaint.
Similarly, Pagels may not testify to Defendant’s alleged failure to maintain adequate track drainage, nor may Pagels opine as to Defendant’s ability to design, construct, and maintain track in compliance with Defendant’s internal engineering standards.
Charles Culver
In his report, Culver opined:
Plaintiffs were performing their duties according to railroad rules and “were not at fault in this incident;”
The train crew was not warned of “conditions ahead” and had “no reason to anticipate the track conditions they would encounter;”
The train’s configuration “increased the dangers associated with emergency braking under the conditions.”
The Court held that Culver’s testimony, however, all appears to relate to Defendant’s affirmative defense of Plaintiffs’ comparative negligence and is therefore relevant. Culver may testify to whether Plaintiffs performed their duties in compliance with railroad rules and whether they were warned as to the conditions ahead of them or had reason to anticipate track difficulties.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Plaintiffs’ expert Alan Pagels and limit the testimony of Plaintiffs’ expert Charles Culver.
While Culver’s testimony will not be excluded, Pagels may not testify about the Defendant’s failure to maintain adequate track drainage; and Defendant’s ability to design, construct, and maintain track in compliance with Defendant’s engineering standards.
Key Takeaway
An expert’s testimony does not need to directly relate to the ultimate issue that the trier of fact is to resolve; the testimony only needs to be relevant to evaluating a factual matter. However, the expert testimony must still be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.”
Doubts as to “whether an expert’s testimony will be useful [to the trier of fact] should generally be resolved in favor of admissibility.”
Plaintiff Mark Walker (“Walker”) worked as a locomotive engineer for Defendant Union Pacific Railroad Company (“Union Pacific”) from approximately 2005 through 2019. After the Court dismissed Walker’s claim under the Americans with Disabilities Act (“ADA”) alleging failure to accommodate, Walker’s remaining claims allege disparate treatment and disparate impact in violation of the ADA. Walker contends that Union Pacific “regarded” Walker as disabled by having a color vision deficiency.
Plaintiff alleged that Union Pacific violated the ADA by requiring Walker to take a secondary color vision field test (“CVFT”), Union Pacific’s proprietary “Light Cannon” test, even though Walker had just passed a scientific color vision test, the “Ishihara” test. Walker also alleged that Union Pacific violated the ADA because the specific version of Union Pacific’s proprietary Light Cannon test that was administered to Walker in July 2019 did not effectively assess an employee’s ability to read and interpret railroad signals because that test screens out qualified individuals who do not, in fact, have color vision deficiencies but whom the test, and thus Union Pacific, wrongfully “regards” as being color vision deficient.
Walker was hired by Union Pacific in 2003, and he passed the Ishihara at that time. He was certified as an engineer in 2005 and he again passed the Ishihara. In 2007 he passed the Ishihara again as part of his recertification as an engineer. In 2010, Walker failed the Ishihara test after incorrectly identifying two plates. Walker was recertified as an engineer, however, after he passed Union Pacific’s then-current wayside signal CVFT. In 2013, Walker again failed the Ishihara by incorrectly identifying two plates. Again, Walker was recertified after passing Union Pacific’s wayside signal CVFT. Walker passed the Ishihara on June 20, 2016. He again passed the Ishihara on June 21, 2019.
Challenges to Expert Testimony
Walker moved to exclude or limit the testimony of Union Pacific’s expert witnesses Steven Fender and Jeff Rabin, O.D., Ph.D. He argued that Fender is not qualified to provide expert testimony on any subject relevant to this case and that Fender’s testimony is irrelevant and unreliable. Walker contended that because he passed the Ishihara test, is a qualified employee as a matter of law, and the Light Cannon is only a qualification standard, Fender’s testimony about regulatory standards is irrelevant. He also argued that Fender is unqualified to render any opinion outside of regulatory standards, such as the efficacy of the Light Cannon test, and his opinions about the efficacy of the Light Cannon test are unreliable and unhelpful to the jury.
Walker also moved to limit Rabin’s testimony to what is contained in his non-reporting witness disclosure under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.
Union Pacific moved to exclude the testimony of Walker’s expert witness Jay Neitz, Ph.D. as misleading, confusing, unreliable, and unhelpful to the jury. Union Pacific argued that Neitz’s testimony is misleading because he misinterprets federal regulations by construing the Light Cannon test as a “scientific” test instead of a “field” test.
Railroad Expert Witness
Steven Fender is a Railroad Transportation and Safety Consultant who has worked in the industry for 45 years. He worked for 31 years at the FRA. He is highly qualified in the fields of railroad operations, safety, and regulations.
Jeff C. Rabin is a tenured Professor of Optometry and Assistant Dean for Research, Assessment and Graduate Studies at the University of the Incarnate Word Rosenberg School of Optometry, where he teaches courses in vision science, optics and binocular vision. Rabin received his Bachelor of Science in Physiological Psychology with highest honors from the University of California at Santa Barbara, and Doctor of Optometry, Masters of Science and Doctor of Philosophy Degrees in Physiological Optics from the University of California at Berkeley.
Jay Neitz is the E.K. Bishop Endowed professor in Ophthalmology at the University of Washington in Seattle. He has been a research scientist and an educator for 30+ years. He is an expert in all aspects of disorders of the eye and their effect on visual performance.
Under the regulations of the Federal Railroad Administration (“FRA”), railroad companies must test railroad engineers at least every three years for, among other things, color vision acuity. The initial test must be one of a set of scientific tests approved by the FRA, including, as relevant here, the Ishihara 14-plate test (“Ishihara”). If an engineer fails the initial, or primary, test, the examinee may undergo a secondary test, which may consist of an [“o]phthalmologic referral, field testing, or other practical color testing.”
A.Development of Union Pacific’s Light Cannon Test
Union Pacific began developing the Light Cannon test in 2015. In October 2015, Dr. Jeff Rabin and Dr. Douglas J. Ivan, M.D., reviewed the Light Cannon test and testing protocol. The 2015 device contained four eight-inch LED lights, in two rows of two, that flashed four colors—red, yellow, green, and white—for five seconds each, and required each color light to be manually turned on and off. The examinee was located one-quarter mile away from the device, with a nurse taking down responses and Union Pacific staff at either end managing the test.
Rabin and Ivan issued their “draft” final report on January 25, 2016. This report identified that the Light Cannon test had “a number of critical short comings in its current design and within the proposed test administrative procedures.”
Union Pacific nevertheless implemented the Light Cannon test on April 1, 2016, with only the few modifications previously described and no further validation studies having been performed. Rabin was hired in approximately mid-2018 to conduct further studies to evaluate the efficacy of the Light Cannon. Rabin testified at deposition, and confirmed at the hearing, that based on the new testing protocols and other changes made to the Light Cannon test after his 2016 report, he believes the 2020 version of Light Cannon test is a valid field test. He noted, however, that for people with color deficiencies, he believes the change in testing protocols did not make a statistically significant difference.
B. Plaintiff Walker
On July 3, 2019, Union Pacific’s Associate Medical Director, Dr. Donald Richard Lewis, stated that Walker had met the FRA’s vision requirements and was approved for recertification. Nonetheless, two days later, Walker’s file was flagged as “not approved” for safety sensitive work. Dr. John Holland, M.D., Union Pacific’s former Chief Medical Office had intervened to require Walker to undergo secondary testing with Union Pacific’s Light Cannon test, based on Walker’s previous Ishihara failures in 2010 and 2013. On July 8, 2019, Walker took and failed Union Pacific’s Light Cannon test. Based on this failure, Union Pacific determined that Walker could not work in a position requiring accurate color signal recognition, and thus he could not work in his current position.
In April 2016, after Union Pacific implemented the Light Cannon test, Walker was an employee who had “failed the primary color vision field testing on [his] last medical certification exam” (his 2013 Ishihara test), but Union Pacific did not retest him using the Light Cannon test despite the recommendation of the NTSB. Indeed, when Walker passed the Ishihara in June 2016, Union Pacific still did not make Walker take the Light Cannon secondary field test. Not until Walker failed the Ishihara in June 2019 did Union Pacific require him to take the Light Cannon secondary CVFT.
i. Walker’s Motion Challenging Fender
Fender’s opinion that the Light Cannon test is in compliance with the rules and regulations of the FRA is irrelevant
Walker argued that Fender’s opinion that the Light Cannon test “complied” with the FRA regulations is irrelevant. He also contended that with this opinion out as irrelevant, Fender is not qualified to opine about his remaining opinions, particularly about the “efficacy” of the Light Cannon test. Walker also asserted that Fender’s opinions other than those related to the FRA regulatory framework (which are irrelevant) are unreliable and not helpful to a jury.
Walker contended that Fender’s opinion that the Light Cannon test is in compliance with the rules and regulations of the FRA is irrelevant to this case because the Court ruled at summary judgment that Union Pacific did not have to subject Walker to the Light Cannon test under FRA regulations, and may even have been precluded from doing so under the regulations.
The Court can instruct the jury as to the legal requirements of the FRA, to the extent they are relevant. Further, whether the Light Cannon is “compliant” with the FRA, to the extent that may be relevant, is a legal conclusion and not a proper topic for expert testimony. Therefore, to the extent Fender’s testimony is intended to explain FRA rules and regulations regarding color vision acuity testing to the jury or opine that the Light Cannon was compliant with FRA rules and regulations, such testimony is improper.
The Court held that Fender may not opine about how Walker’s case compares to cases presented to the Locomotive Engineer Review Board or the Operating Crew Review Board, or that the Light Cannon test is in compliance with FRA rules and regulations per the decisions of those review boards. Such a discussion is of minimal relevance and is unduly prejudicial and potentially confusing to the jury.
Fender is qualified to opine as to whether the Light Cannon test was “valid” as that term is used in the Best Practices
Walker argued that Fender is unqualified to render an opinion regarding the efficacy of the Light Cannon test, and that the opinion is unreliable and unhelpful. Fender spent decades working in railroad operations and safety. He explained at the hearing that he had frequent exposure to railroad signals. He also saw the Light Cannon test in operation. The Court held that Fender is qualified to opine as to whether the Light Cannon test was “valid” as that term is used in the Best Practices—meaning that the test reasonably matched real world operating or working conditions.
Fender opined generally in his report that the Light Cannon test is “employee friendly” because it shows all four lights to orient the examinee and is “a practical, well-developed, and implemented test which replicates real world conditions.” During Walker’s 2019 test, he was not given the 2016 protocol (or the 2019 protocol as it is identified in Rabin’s testing); nor was he given the modified 2020 protocol. Nonetheless, the experts’ opinions about the efficacy of the Light Cannon test after the 2020 changes were implemented provide some probative value to the test taken by Walker, which involved a hybrid protocol between the 2016 and 2020 testing protocols.
The Court found that Fender’s opinion about the efficacy of the 2020 Light Cannon test, even though he repeatedly emphasized the importance of all four colors first being shown to the examinee, is somewhat helpful to the jury. It also is reliable because Fender has decades of related experience in the industry and personal experience viewing the Light Cannon test.
The remaining aspects of Fender’s opinion also are reliable and potentially helpful to the jury based on Fender’s experience and the issues in this case regarding railroad safety and the need for color vision acuity
The Court held that Fender may testify to Union Pacific’s general rail business and rail infrastructure, its importance in the supply chain, and its importance to national security and the military. He also may testify generally to the complexity and business of the rail lines and Union Pacific’s rail lines, in particular. Fender further generally may describe safety concerns, signaling systems, and the importance of color vision acuity to signaling systems and safe rail operations.
Walker’s Motion Challenging Rabin
Rabin is a limited expert witness disclosed under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure. Accordingly, he did not provide (and was not required to provide) an expert report. As an initial matter, the Court holds that, as with Fender, Rabin may not testify that the Light Cannon test complies with or is valid under the FRA’s rules and regulations.
Walker sought to ensure that Union Pacific does not attempt to have Rabin testify regarding anything specific to Walker—his color vision acuity, the application of the Light Cannon test with respect to Walker, or his ability to perform his job safely. The Court agreed that these issues are outside the scope of Rabin’s disclosed testimony.
The Court concluded, however, that Union Pacific has sufficiently disclosed its intention to elicit testimony from Rabin regarding his 2019-20 study of the Light Cannon test.
Counsel for Union Pacific also argued that there should be no temporal distinction between Rabin’s testimony regarding the 2016 and 2020 Light Cannon tests because Rabin noted that both versions of the test nearly equally captured persons with color vision deficiencies. This case, however, is about an employee who alleges that he does not have any color vision deficiency but instead was regarded as having such a deficiency because of his earlier failures of the Ishihara test.
Although Rabin’s opinion regarding the effectiveness of the Light Cannon is based on the modified 2020 test and testing protocols, like Fender’s opinion it still has some probative value and is thus somewhat helpful to the jury. This is because Walker did not receive the 2016 testing protocol. Thus, the Court held that Rabin may testify as to the efficacy of the 2020 Light Cannon and whether it accurately mimics actual operating or working conditions in the field.
Union Pacific’s Motion Challenging Neitz
Neitz mistakenly opined that the Light Cannon test must be validated as a scientific test instead of a field test
Union Pacific first argued that Neitz mistakenly opined that the Light Cannon test must be validated as a scientific test instead of a field test. They designed the Light Cannon as a field test, not a scientific test. It is intended to match newer LED signals. Regardless of the dispute about the validity of the Light Cannon test, the Court agreed that it is a field test and not a scientific test. Walker argued, however, that because the Light Cannon does not use any actual equipment from the field, it cannot be a field test.
That, however, goes to the “validity” of the field test, not to whether it is a field test. The Court will preclude, as irrelevant and misleading, Neitz from testifying that the Light Cannon test was required to undergo rigorous scientific study or peer review or must meet the standards of a scientific test to be a valid secondary field test.
Union Pacific also challenged the helpfulness of Neitz’s opinion because he does not provide a test that would suffice under the regulations. Neitz, however, discussed the advantages and disadvantages of several available tests. The Court held that this challenge goes to the weight of his opinion, not its admissibility.
Neitz’s opinion is unreliable because it relies on Rabin’s 2019-20 testing regarding the Light Cannon test
Finally, Union Pacific argued that Neitz’s opinion is unreliable because it relied on Rabin’s 2019-20 testing regarding the Light Cannon test without considering Rabin’s later deposition testimony regarding the validity of the Light Cannon test after the 2020 changes had been implemented and because Neitz has never seen the Light Cannon test.
The Court held that Neitz may focus on the pre-2020 test, which is more similar to the test given to Walker than the 2020 test, and Union Pacific can challenge through cross examination why Neitz did not further consider Rabin’s evaluation of the Light Cannon post-changes, and whether Neitz is moved by Rabin’s change of heart after the 2020 changes to the Light Cannon were implemented.
The Court held that Neitz is highly qualified regarding color vision acuity examinations, has reviewed Walker’s examinations and medical records, has reviewed the 2019-20 test data about the Light Cannon, understands color vision acuity testing in general, and offers a variety of opinions that are helpful to the jury on these topics. His opinions specific to the Light Cannon test do not necessarily require that he have seen the device, because he differentiates the pre- and post- 2020 protocols and relies on the underlying data from Rabin’s testing.
In other words, Neitz is not improperly “parroting” the opinion of another expert, but has independently reached his own opinions, relying on the facts and data gathered by another testifying expert.
Most of Neitz’s unchallenged testimony is unrelated to whether the Light Cannon test must undergo vigorous scientific testing
Finally, Union Pacific does not specifically challenge most of Neitz’s proposed testimony, other than generally to assert that because it is “based on” his misunderstanding that the Light Cannon test is not a field test, it must be excluded. The Court disagrees. Most of this unchallenged testimony is unrelated to whether the Light Cannon test must undergo vigorous scientific testing.
This includes:
(a) color vision acuity in general
(b) persons may not pass the primary color vision FRA test but still may safely work as a locomotive engineer or conductor because they have sufficiently color vision acuity to safely perform their duties
(c) how the majority of anomalous trichromats who fail the Ishihara can recognize and distinguish between railroad signals and the need for a valid test to separate out those who cannot
(d) Rabin’s 2019-20 study demonstrated that the Light Cannon test cannot screen anomalous trichromats who are perfectly capable of reading colored signals from those who cannot
(e) Rabin’s 2019-20 study showed that the Light Cannon was not a test that was reliable or valid (e.g., reasonably matched actual operating or working conditions), and reinforced he and Ivan’s 2016 report reaching the same conclusion
(f) a discussion of Walker’s past test results, including improper grading
(g) a discussion of Walker’s medical history and how it related to his color vision acuity
(h) a description of how Walker had consistently passed the color vision tests sufficient to show adequate color acuity.
The Court finds that all of this testimony is reliable and would be helpful to the jury.
Held
The Court granted in part and denied in part Plaintiff’s motion to exclude the testimony of Steven Fender and Jeff Rabin, and Defendant’s Daubert motion to exclude the testimony of Jay Neitz.
Key Takeaway:
Fender’s opinion about the efficacy of the 2020 Light Cannon test, even though he repeatedly emphasized the importance of all four colors first being shown to the examinee, is somewhat helpful to the jury. It also is reliable because Fender has decades of related experience in the industry and personal experience viewing the Light Cannon test.
Although Rabin’s opinion regarding the effectiveness of the Light Cannon is based on the modified 2020 test and testing protocols, like Fender’s opinion it still has some probative value and is thus somewhat helpful to the jury. This is because Walker did not receive the 2016 testing protocol. Thus, the Court held that Rabin may testify as to the efficacy of the 2020 Light Cannon and whether it accurately mimics actual operating or working conditions in the field.
Neitz is not improperly “parroting” the opinion of another expert, but has reviewed Walker’s examinations and medical records, has reviewed the 2019-20 test data about the Light Cannon, understands color vision acuity testing in general, and offers a variety of opinions that are helpful to the jury on these topics.
Plaintiff Elmer Kellar sued his employer, Defendant Union Pacific Railroad Company (“UPRR”), under the Federal Employer’s Liability Act (“FELA”). He sought damages for injuries he sustained when he drove his car off the road minutes after clocking out on January 17, 2021. Kellar claimed he fell asleep at the wheel.
Kellar argued that UPRR was negligent for failing to maintain a safe workplace. On January 17, 2021, and the days preceding, he had to work beyond the statutory 12-hour limit and/or was deprived of the adequate off-duty hours between on-duty periods. Kellar added that he was covered under the Hours of Service Act (“HSA”), which UPRR allegedly violated through its work schedule requirements on the date of the accident (and on previous occasions).
UPRR moved for summary judgment dismissing Kellar’s claims, arguing that it was not negligent under FELA and that Kellar was not covered by the HSA. Finding that fact issues existed as to whether Kellar was a utility employee covered by the HSA and whether UPRR violated the HSA, the Court denied summary judgment.
UPRR sought to exclude Kellar’s railroad expert witness, Lawrence Mann, under Daubert.
Whether UPRR acted negligently by failing to provide a safe workplace for Kellar and whether it was per se negligent for violating Hours of Service (HSA) provisions constituted the central issues in this case. The key question was whether Mann’s testimony would help the trier of fact address these matters.
Railroad Expert Witness
Lawrence M. Mann is an attorney with over 55 years of experience in railroad safety matters. Since 1996, Mann has been a member of the Federal Railroad Administration (FRA) Rail Safety Advisory Committee (RSAC). Within this committee, he participated in the FRA’s Fatigue Management Working Group, which was established in 2012. This group included officials from Union Pacific and representatives from the Association of American Railroads (AAR).
In addition to his work with the RSAC, Mann served as the principal draftsman of the Federal Railroad Safety Act of 1970 (FRSA). His extensive background in railroad safety has significantly influenced regulations and practices within the industry. Mann’s contributions to safety initiatives have played a vital role in shaping policies that prioritize the well-being of railroad workers and the public. His ongoing involvement in various committees and working groups reflects his commitment to improving safety standards across the railroad sector.
Mann stated that the opinions and facts presented in his report focused on railroad safety, fatigue management history in the railroad sector, and the specific safety risks associated with fatigue management in this industry. He provided this analysis and assessment to aid the trier-of-fact in understanding the technical application of hours-of-service regulations, which are generally not well-known outside the railroad industry, in relation to Kellar’s case.
Mann concluded his report with the observation that by allowing Kellar to work extended hours, Union Pacific had not implemented sufficient safety measures to address fatigue among employees like Kellar. Based on his expertise in safety and fatigue within the railroad industry, he believed that the company failed to take necessary precautions in this particular instance.
Defendant UPRR’s Argument
In its effort to exclude Mann, UPRR argued that his expert report resembled a legal brief. They claimed it consisted mainly of legal conclusions and the application of law to facts. Additionally, UPRR asserted that Mann lacked the qualifications to testify as an expert on railroad safety since he had never worked for a railroad. Instead, he had served as a plaintiff’s attorney and participated in drafting railroad safety regulations and legislation.
UPRR contended that Mann’s opinion on fatigue management regulations and their history were irrelevant. They noted that binding fatigue management regulations were not enacted until 2022, more than a year after the plaintiff’s accident. Furthermore, UPRR argued that Mann had not employed any recognized methodology and merely expressed his own opinions regarding the case’s facts. They particularly objected to his medical opinion, which stated that Kellar suffered from a disrupted circadian rhythm due to UPRR’s actions.
Plaintiff Kellar’s Counter-Argument
Kellar opposed the motion, arguing that he primarily presented Mann as an expert on railroad safety. He emphasized that Mann’s expertise was particularly relevant to understanding Union Pacific’s knowledge and foreseeability. These factors were crucial to assessing Union Pacific’s negligence in the case.
Analysis
For the negligence claim, the Plaintiff asserted that Mann’s report showed that Union Pacific recognized the risks of fatigue, making Kellar’s injury foreseeable.
UPRR’s corporate designee testified repeatedly to the railroad’s awareness of the risk presented by fatigue. Thus, there is simply no contested fact in issue that this portion of Mann’s testimony tends to prove, and Mann’s testimony on this point would not assist the jury in determining an issue for trial.
Furthermore, Mann lacked the qualifications to provide opinions on medical causation—specifically, that Kellar suffered from disrupted circadian rhythm caused by UPRR. Mann’s report did not reference any sleep study, nor did he possess a medical degree. Moreover, he had never worked as a sleep specialist. As a result, the Court excluded this testimony as well.
Mann’s testimony also stated that sleep deprivation increases the risk of falling asleep while driving. However, the Court held that the testimony was unnecessary because understanding fatigue’s onset and effects falls within the realm of the jury’s common experience.
For the negligence per se claim, much of Mann’s historical analysis of fatigue management lacked relevance. The Plaintiff needed to prove he was covered under the HSA and that UPRR violated HSA’s terms for this claim to hold water.
Mann’s appreciation of the legislative history of fatigue management regulations in the railroad industry, which incorporated many citations to statutes, the Federal Register, and House and Senate reports, would not help the trier of fact in making the required determination.
Mann could testify about the technical application of hours-of-service regulations, as UPRR did not contest his qualifications. Therefore, this testimony could provide useful expertise, provided it did not usurps the Court’s role.
Held
The Court granted in part the Defendant’s motion to exclude Plaintiff’s railroad expert witness Lawrence Mann’s testimony.
Key Takeaway:
To begin with, much of Mann’s testimony was excluded because he lacked a medical degree which was need to opine on causation in this case and his opinion on sleep deprivation fell within the jury’s ‘common experience and knowledge.’ Moreover, his appreciation of the legislative history of fatigue management regulations in the railroad industry will simply not assist the trier of fact in making the necessary determination.
Case Details:
Case caption:
Kellar v. Union Pac. Railroad Company
Docket Number:
2:21cv2045
Court:
United States District Court for the Eastern District of Louisiana
A district judge in Missouri partly excluded the testimony of an expert accident reconstructionist retained to opine on the safety of the crossing.
The case began with a train-vehicle collision near Mineral Point, Missouri, on August 19, 2019. Anthony Courtois drove a 2007 Freightliner dump truck westward toward North Oak Road’s railroad crossing. As he approached, an Amtrak train travelled southbound on Union Pacific-owned tracks. Courtois claimed he didn’t see the train due to excessive vegetation along the tracks until it was too late, leading to the collision.
The Plaintiff sued Union Pacific and Amtrak, alleging negligence. He claimed they did not maintain the crossing or warn of danger. They had also failed to issue slow orders, sound the train’s horn in a timely and safe manner, or adjust speed safely.
During discovery, the Plaintiff disclosed James Loumiet as an expert witness. The Defendants jointly sought to limit or exclude Loumiet’s testimony under Daubert grounds. They argued his opinions on the crossing’s danger should be excluded under Federal and Missouri law. They also claimed Loumiet’s opinions were flawed for considering irrelevant factors, applying the wrong standard of care, and lacking an adequate foundation.
Accident Reconstruction Expert Witness
James Loumiet holds a degree in mechanical engineering. He possesses over 37 years of professional experience, including 34 years specializing in accident reconstruction. He conducted a personal inspection of the North Oak Road crossing, taking precise measurements and photographs. Additionally, he reviewed various documents, such as crash reports, photographs, and a video of the collision recorded from the locomotive.
James Loumiet prepared an expert report in which he highlighted several critical observations about the North Oak Road crossing. He noted the presence of sight-restricting trees and vegetation in all four quadrants of the crossing. Further, he analyzed the road’s grade leading to the crossing, identifying a humped profile and a steep uphill grade on the east approach, the direction from which the Plaintiff approached. He also examined the topography of the crossing, noting the road was curved west of the crossing and the tracks were curved through and around the crossing on both sides. Furthermore, Loumiet observed that the grade crossing traffic control consisted of stop signs and private crossing signs.
In his expert report, Loumiet concluded the North Oak Road crossing was extrahazardous at the time of the collision. Additionally, the Plaintiff disclosed Loumiet so as to testify about the crossing’s extrahazardous nature as a causative factor in the collision.
B. Defendant’s Argument
In their motion, the Defendants did not contest Loumiet’s qualifications. Instead, they argued that relevant case law prohibited experts from testifying about the dangerousness of a railroad crossing, thus his opinions should be excluded. Furthermore, the Defendants contended that Loumiet’s opinions were inadmissible as they would usurp the jury’s role as the factfinder. Additionally, the Defendants claimed that Loumiet mischaracterized the duties of a Missouri driver, made improper legal conclusions, and relied on factors irrelevant to the collision, as well as materials not adopted under Missouri law.
An expert could not testify that a crossing was unusually dangerous or extrahazardous
Defendants argued that Courts consistently recognized an expert could not testify that a crossing was unusually dangerous or extrahazardous. They asserted that Loumiet tried to increase the railroad’s legal duties while diminishing those of the driver. Additionally, Defendants claimed that Loumiet’s reliance on a sight distance table from the American Association of State Highway and Transportation Officials (AASHTO) was inappropriate because Missouri law had not adopted this standard for railroad crossings, and it applied to new, not existing, crossings.
Lastly, Defendants argued that they should bar Loumiet from testifying that Union Pacific violated Missouri Revised Statutes Section 389.665(2), which concerned the clearing of vegetation at public crossings.
Loumiet was being offered to testify as to the safety of the crossing
The Court disagreed with Defendants’ characterization of the incident as a mere “car accident.” It involved a collision between a dump truck and a passenger train at a rural railroad crossing. The Court noted average jurors lack experience in dump truck driving, train operation, or railroad crossing maintenance. Federal Rule of Evidence 702 allows qualified experts to offer opinion testimony to aid jury comprehension or fact determination.
Moreover, the Court held that Loumiet was not being offered to testify about whether the Plaintiff met his legal duties as a driver on the day of the collision. Instead, he was supposed to testify about the crossing’s safety. The Court decided not to exclude Loumiet’s testimony based on Defendants’ argument that the expert allegedly minimized or ignored Plaintiff’s duty of care.
The Court found that Section 389.665(2) did not apply to this case as the North Oak Road crossing was not a public crossing within the meaning of the statute. Consequently, the Court granted Defendants’ Daubert motion to the extent that Loumiet would be prohibited from testifying that Union Pacific violated Missouri Revised Statutes Section 389.665(2). In all other respects, the Court denied Defendants’ motion to exclude or limit the testimony of James Loumiet.
Held
The Court partially granted the Defendant’s Motion to Exclude the expert testimony of James Loumiet.
Key Takeaway:
The Court found that the expertise of Loumiet would assist the jury in understanding complex issues surrounding railroad crossings, such as maintenance and safety standards. Additionally, the Court clarified that Loumiet’s testimony was focused on the safety of the crossing rather than opining on the Plaintiff’s legal duties as a driver. However, the Court partially granted the Defendants’ motion regarding Loumiet’s testimony on a specific statute violation, noting that it did not apply to the case.
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.
Held
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.
Plaintiff Matthew Thomas was formerly employed by the Defendant, BNSF Railway Company (“BNSF”) as an engineer. Thomas filed this wrongful termination suit against BNSF claiming it was a retaliatory measure on account of his whistleblower status under the Federal Railway Safety Act (“FRSA”) due to his engagement in protected activities such as reporting concerns regarding BNSF’s hours of service violations to the Federal Railroad Administration (“FRA”) and voicing safety and mistreatment concerns to his supervisors. BNSF alleged that Thomas’ termination was caused by his handling of a train which derailed under his control and caused $2.2 million in damages. According to the report generated by Technical Research and Development (“TR&D”) group, train handling was deemed to be the cause of the derailment, specifically the use of excessive dynamic braking by Thomas.
Newman, a Mechanical Engineer by profession is also a Railroad Track Consultant and Railroad Expert Witness who was retained by Thomas to opine on the train derailment incident that occurred during his employment at BNSF.
McCarthy is a Railroad Consultant who has worked on several high-profile cases involving rail equipment and severe injury to employees. He was retained by Thomas to opine on the policies and procedures of BNSF besides the derailment incident in question.
BNSF also moved for summary judgment on Thomas’ FRSA retaliation claim.
Discussion by the Court
As per Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure, Thomas was expected to disclose his experts by September 16, 2022, BNSF was required to disclose experts by October 17, 2022 and the rebuttal expert disclosures were expected to be submitted by November 17, 2022. The discovery deadline, including expert depositions, was originally scheduled for December 16, 2022, and was continued for an additional 30 days until January 15, 2023.
Months after his expert disclosure deadline, Thomas (Whistleblower) submitted an amended expert disclosure statement disclosing Newman and McCarthy as retained expert witnesses on November 18, 2022 claiming that instead of seeking an extension from the Court, an agreement was reached with BNSF regarding the submission of expert disclosures by November 18, 2022. The November 18 Disclosure, however, only included Newman’s report. Thomas did not submit another amended expert disclosure report or provide McCarthy’s report till December 9, 2022.
Except for arguing that his initial disclosure of McCarthy was identical to BNSF’s disclosure of one of its witnesses, Thomas provided no sufficient explanation regarding his failure to timely disclose McCarthy. The Court decided that McCarthy’s report warranted exclusion on account of Thomas’ failure to prove that his late disclosure was substantially justified or harmless.
But the Court found Robert Newman’s late disclosure harmless based on Thomas’ agreement with BNSF to submit his expert disclosures by November 18, 2022 and because BNSF had over a month to review Newman’s deposition transcript considering his deposition took place on December 15, 2022.
BNSF nevertheless sought the exclusion of Newman’s testimony arguing that it failed to meet the Daubert standards. BNSF argued that it was based on speculation and also added that the methodology used by Newman was unreliable. Thomas, heavily relying on Arizona and New Hampshire law, argued that Newman’s report could be “shaky” yet permissible and that the jury should “exercise its fact-finding function.”
Newman testified regarding possible rail defects that could have existed, and how such a hypothetical rail defect could lead to a derailment. When Newman explained that a sunkink could have contributed to the derailment while he was being questioned, it was found that Newman never examined the actual site or the track of the derailment at issue, and only looked at a few pictures taken from a distance by someone else which is why he was not certain of a rail defect existing on the July 25, 2020 train derailment or that any such hypothetical defect caused that derailment.
It was also found that he did not take into consideration facts as fundamental as the location of the derailment or the temperature of the location when he said he did not know the exact location of the derailment incident in Arizona except for the fact that it was “nearby” and went on to rely on the temperature in Phoenix, Arizona despite the derailment occurring in the mountains, near Prescott, Arizona.
The Court observed that Newman needed to be able to point to some objective source to be able to justify his conclusions and his research had to be described in sufficient detail for the Court to assess its scientific validity yet no such showing was made by Thomas with regard to Newman in this case.
Held
The Court held that however well-qualified an expert may be, it was necessary for him to take substantial as well as fundamental facts such as where the derailment occurred and the temperature of the location into consideration in order to generate a sound opinion which Newman had failed to take into consideration in this case.
The Court excluded the testimony of both experts, Robert McCarthy and Robert Newman. McCarthy’s testimony was excluded as per Federal Rule of Civil Procedure 26(a)(2) as well as Federal Rule of Civil Procedure 37(c)(1) and Newman’s testimony was excluded on Daubert grounds. The Court granted BNSF’s motion for summary judgment on Thomas’ Federal Railway Safety Act (“FRSA”) retaliation claim and entered judgment in favor of Defendant, BNSF Railway Company and against Plaintiff, Matthew Thomas prior to dismissing the case.
Key Takeaways
Regardless of an expert’s qualifications, their arguments are only convincing to the Court if their testimony is premised on substantial as well as fundamental facts and if the methodology employed by them is reliable.
Both parties have to stick to the expert disclosure deadline although an exception may be made if an agreement is reached with the opposing party regarding the disclosure of the expert witness in question. In any case, it is important for the opposing party to have enough time to be able to review the transcript of the expert in question’s deposition. If an expert witness is disclosed late, the party retaining them has to provide a sufficient explanation that proves that the delay was justifiable or harmless.
