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Malinski v. BNSF Railway Co.

United States District Court, N.D. Oklahoma

March 31, 2017

TYLER D. MALINSKI, Plaintiff, and PAULA SMITH, Intervenor,
v.
BNSF RAILWAY COMPANY, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL UNITED STATES DISTRICT JUDGE.

         Before the Court are defendant BNSF Railway Company's (“BNSF”) Daubert Motion Regarding Plaintiff's Expert, Dr. Adam Sherman (Doc. 38) and BNSF's Daubert Motion Regarding Plaintiff's Expert, Steve Lett (Doc. 45). Both motions seek to exclude expert opinion testimony pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Plaintiff timely responded to both motions, and BNSF filed its replies.[1]

         The most common method to assess a Daubert motion is by conducting a Daubert hearing, although a hearing “is not specifically mandated.” Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). Here, neither party has indicated that such a hearing is necessary. After careful review of the motions and exhibits, the Court believes a hearing is not required in this case.

         I. Background

         Defendant BNSF removed this case on August 28, 2015. (Doc. 2). Plaintiff's lawsuit seeks recovery from BNSF for personal injury damages he sustained from a motor vehicle accident between his vehicle and a train owned and operated by BNSF. Plaintiff alleges that BNSF failed to protect the grade crossing by using automatic signaling devices, flashing lights, or crossing guards, and that such failure amouns to negligence. Plaintiff further alleges that BNSF's negligence was the proximate cause of the collision, which left plaintiff permanently partially disabled. (Doc. 4-4 at 2). On December 5, 2016, the Court allowed intervention by Paula D. Smith, the mother of the passenger in plaintiff's vehicle who died shortly after the accident. (Doc. 109).

         II. Legal Standards Governing Expert Testimony

         Rule 702 of the Federal Rules of Civil Procedure governs the admissibility of expert testimony. The rule provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 597 (1993), the Supreme Court held that the rule requires the district courts to act as gatekeepers and ensure that scientific expert testimony is relevant and reliable. An expert's opinion must be based on “more than subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590. The applicability of Daubert was later expanded to apply to the opinions of all experts, not just scientific experts. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (“We conclude that Daubert's general holding-setting forth the trial judge's general ‘gatekeeping' obligation- applies not only to testimony based on ‘scientific' knowledge, but also to testimony based on ‘technical' and ‘other specialized' knowledge.”).

         In Bitler v. A.O. Smith Corp., 400 F.3d 1227 (10th Cir. 2005), the Tenth Circuit rehearsed the two-part inquiry undertaken by district courts when considering a Daubert challenge. First, the court must determine whether “the expert's proffered testimony . . . has ‘a reliable basis in the knowledge and experience of his [or her] discipline.'” 400 F.3d at 1232-33 (quoting Daubert, 509 U.S. at 592). This involves “conducting a preliminary inquiry into the expert's qualifications and the admissibility of proffered evidence.” Id. at 1233. An impermissible analytical gap in an expert's methodology can be a sufficient basis to exclude expert testimony under Daubert. See id.; see also Norris v. Baxter Healthcare Corp., 397 F.3d 878, 886 (10th Cir. 2005). “Neither Daubert nor the Federal Rules of Evidence ...


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