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”).
Norfolk sought the exclusion of three of DeLeon’s experts-Daniel Billington, Colon Fulk, and Jason Engle.
Accident Reconstruction Expert Witness
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.
Railroad Expert Witnesses
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.
Discussion by the Court
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.
Case Details:
| Case Caption: | Deleon V. Norfolk Southern Railway Company |
| Docket Number: | 2:21cv224 |
| Court Name: | United States District Court, Indiana Northern |
| Order Date: | May 19, 2026 |
