United States District Court, N.D. Oklahoma
TYLER D. MALINSKI, Plaintiff, and PAULA SMITH, Intervenor,
BNSF RAILWAY COMPANY, Defendant.
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE.
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.
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
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.
Legal Standards Governing Expert Testimony
702 of the Federal Rules of Civil Procedure governs the
admissibility of expert testimony. The rule provides as
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
(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'
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 ...