United States District Court, W.D. Oklahoma
has moved to exclude the proposed testimony of Alan Blackwell
on Daubert grounds. Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993).
accord with Rule 702, the Supreme Court has determined that
the [trial judge] ‘must ensure that any and all
scientific testimony or evidence is not only relevant, but
reliable.'” Bitler v. A.O. Smith Corp.,
400 F.3d 1227, 1232 (10th Cir. 2004) (quoting
Daubert, 509 U.S. at 589). “This gatekeeper
function requires the judge to assess the reasoning and
methodology underlying the expert's opinion, and
determine whether it is scientifically valid and applicable
to a particular set of facts.” Goebel v. Denver and
Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir.
2000) (citing Daubert, 509 U.S. at 592).
determining the admissibility of expert testimony, the court
initially must decide whether the proposed expert “is
qualified by ‘knowledge, skill, experience, training,
or education' to render an opinion.” United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009)
(en banc) (quoting Fed.R.Evid. 702). Further, the
expert's knowledge, skill, experience, training, or
education must be relevant to the facts at issue.
Ralston, v. Smith & Nephew Richards, Inc., 275
F.3d 965, 969 (10th Cir. 2001). The court then conducts a
two-part inquiry, determining first if the expert's
proffered testimony has “‘a reliable basis in the
knowledge and experience of his [or her]
discipline.'” Bitler 400 F.3d at 1233
(quoting Daubert, 509 U.S. at 592). In making this
determination, the court must decide “‘whether
the reasoning or methodology underlying the testimony is
scientifically valid.'” Id. at 1233
(quoting Daubert, 509 U.S. at 592-93). Second, the
court must inquire “into whether proposed testimony is
sufficiently ‘relevant to the task at hand.'”
Id. at 1234 (quoting Daubert, 509 U.S. at
plaintiff need not prove the expert is indisputably correct .
. . . Instead, the plaintiff must show that the method
employed by the expert in reaching the conclusion is
scientifically sound and that the opinion is based on facts
which sufficiently satisfy Rule 702's reliability
requirements.” Mitchell v. Gencorp Inc., 165
F.3d 778, 781 (10th Cir. 1999) (citations omitted). The court
is not required “to admit opinion evidence that is
connected to existing data only by the ipse dixit of
the expert. A court may conclude that there is simply too
great an analytical gap between the data and the opinion
proffered.” Gen. Elec. Co. v. Joiner, 522 U.S.
136, 146 (1997).
case, plaintiff claims he was injured on January 11, 2014,
while working for defendant as an engineer operating a train.
He asserts that the locomotive in which he was riding
“bottomed out” and bounced, resulting in serious
bodily injury to him and/or the aggravation of a preexisting
condition. It is undisputed that the track in question was
operated by defendant as if it was a Class 4 track, due to
applying an internal 55 mph speed limit. It is also
undisputed that, on the date of the incident, defendant
operated the track under a “slow order” which
limited freight speed to 40 mph, the maximum freight speed
for a Class 3 track. Doc. Nos. 38-3, p. 1; 51-1, p. 18;
see also, 49 C.F.R. § 213.9. Plaintiff
testified that he was traveling 38 mph at the time of the
incident. Doc. #39-1, p. 19.
response to plaintiff's report of the bottoming out
incident, defendant reduced the maximum allowable speed of
the track to 25 mph (the maximum freight speed for Class 2
track) and had the track inspected. After the inspection, the
maximum speed was raised back up to 40 mph. Doc. Nos. 38-3,
p. 1; 38-6, p. 1.
inspection of the track was conducted by Lawrence Wallace, an
inspector for defendant. His inspection indicated a one and
five-eighths (1 5/8ths) inch deflection or dip in the track
in the area where the incident occurred. It is undisputed
that a Class 4 track has a maximum permissible deviation of 2
inches. Class 3 and Class 2 tracks have maximum permissible
deviations of 2 1/4 inches and 2 3/4 inches respectively.
this backdrop, Mr. Blackwell generated an expert report dated
July 13, 2017, which was timely under the court's
scheduling order. The report was lengthy, but composed almost
entirely of excerpts from federal railroad safety standards
and various manuals. The report made little or no effort to
relate the various standards to Mr. Blackwell's
conclusions. But, reduced to their essentials, the pertinent
opinions that Mr. Blackwell seeks to offer are these: (1)
that defendant failed to maintain track geometry conditions
such that a train could safely and comfortably operate on it,
(2) that defendant failed to take proper remedial steps, (3)
that defendant did not properly maintain the ballast for the
affected section of track, and (4) that defendant failed to
properly inspect the track.
then filed the present motion to exclude Mr. Blackwell's
opinions. Defendant does not challenge Mr. Blackwell's
qualifications in general, but rather challenges whether
there is a reliable basis for the conclusions he drew. As to
certain conclusions, defendant challenges whether Mr.
Blackwell employed any discernable methodology in reaching
his conclusions or whether his opinions were just of the
ipse dixit variety.
respect to the track geometry opinion, defendant argues that
Mr. Blackwell acknowledged but then ignored the fact that the
track in question was fully compliant with the applicable
federal standards. Further, defendant notes Mr.
Blackwell's opinions simply ignored the apparently
undisputed fact that defendant did take remedial steps,
including reducing the authorized speed for the affected area
of track, after being advised previously of a problem. As to
the ballast opinion, relating to the condition of the roadbed
under the rails, defendants point out that Mr.
Blackwell's conclusions were based on an aerial photo of
the general area taken some eight months before the incident
that is the basis for plaintiff's claim, which photo
appears to show little or nothing about the condition of the
ballast. The second basis was a video taken from the
locomotive. Defendant notes the train was traveling at least
38 mph, that the camera was twelve to fifteen feet above the
track over the front of the locomotive, and that the video
therefore provides little or no basis for evaluating the
condition of the ballast. The final basis for Mr.
Blackwell's ballast opinion was his visual inspection of
the track. As defendant notes, that inspection was over
three years after the incident. Finally, as to the
track inspection opinion, defendant argues Mr.
Blackwell's opinion simply ignored, or somehow assumed
away, the apparently undisputed evidence that track
inspections were conducted.
of defendant's objections appear to be substantially
well-founded. Mr. Blackwell's opinions simply ignore
inconvenient facts. In the case of the ballast opinion, Mr.
Blackwell relies on visual evidence of track conditions so
removed in time from the incident as to be essentially
meaningless or which lacks the detail necessary to support
his conclusions. Mr. Blackwell himself acknowledged that
roadbed conditions are always changing, due to weather or
otherwise, and plaintiff has offered no explanation or
argument as to how a visual inspection eight months before,
or three years after, the pertinent time period provides a
meaningful basis for analysis. Indeed, plaintiff's
response to defendant's motion makes virtually no effort
to identify or defend Mr. Blackwell's methodology at all.
Rather, plaintiff relies only on Mr. Blackwell's
experience in the area and his interpretation of deposition
testimony from the track inspector, Mr. Wallace, taken after
Blackwell's expert report was prepared.
October 12, 2017 “addendum” to his expert report,
Mr. Blackwell's shifts his position to argue that the
deposition testimony of Mr. Wallace, the track inspector,
shows that defendant did not meet federal standards as to the
degree of deflection or dip in the track because Wallace did
not take the vertical rail deflection based on the movement
of the train into account. This conclusion is based on a
forced and inaccurate characterization of what Mr. Wallace
said. Contrary to Mr. Blackwell's apparent conclusion and
plaintiff's argument, Mr. Wallace's testimony was
that he generally did take into account the
“pumping” that would occur from the movement of
the train in making his calculations.
the fact that Mr. Wallace testified as to his standard
approach, as opposed to any specific recollection of
inspecting this particular stretch of track, is both
unremarkable (the deposition having occurred some three years
after the inspection at issue) and not a basis for reaching
the conclusion that Mr. Blackwell reached-that the inspection
was somehow improper. Similarly, Mr. Blackwell's changed
or expanded ...