Tanya Nunez v. BNSF Railway Company
Filing
Filed opinion of the court by Judge Posner. AFFIRMED. William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge and Joel M. Flaum, Circuit Judge. [6514488-1] [6514488] [12-3018]
Case: 12-3018
Document: 43
Filed: 09/11/2013
Pages: 7
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3018
TANYA NUNEZ, as administrator of the estate of
CYNTHIA L. MADDEN,
Plaintiff‐Appellant,
v.
BNSF RAILWAY COMPANY,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:09‐cv‐04037‐JAG — John A. Gorman, Magistrate Judge.
____________________
ARGUED APRIL 12, 2013 — DECIDED SEPTEMBER 11, 2013
____________________
Before BAUER, POSNER, and FLAUM, Circuit Judges.
POSNER, Circuit Judge. Cynthia Madden was killed when her
car was struck by the defendant’s train at a railroad crossing in
Illinois. Her estate sued the railroad, basing jurisdiction on di‐
versity of citizenship and claiming that her death had been
caused by the railroad’s negligence—specifically that the rail‐
road crossing gates had descended, the warning lights at the
crossing had begun flashing, and the locomotive horn had been
blown, all fewer than 20 seconds (fewer than 15 seconds in the
case of the horn) before the train reached the crossing, in viola‐
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tion of applicable federal safety regulations. 49 C.F.R.
§§ 222.21(b)(2), 234.225.
A state may provide a remedy for negligence resulting from
violation of federal railroad safety regulations. 49 U.S.C.
§ 20106(b)(1)(A). Illinois law, on which this suit is based, pro‐
vides such a remedy, by making the violation of a safety regula‐
tion intended for the protection of the class of persons to whom
the plaintiff belongs (and who received the type of injury the
regulation was intended to prevent) prima facie evidence of
negligence. E.g., Abbasi ex rel. Abbasi v. Paraskevoulakos, 718
N.E.2d 181, 185–86 (Ill. 1999); Kalata v. Anheuser‐Busch Cos., 581
N.E.2d 656, 661 (Ill. 1991); Davis v. Marathon Oil Co., 356 N.E.2d
93, 97 (Ill. 1976); Cuyler v. United States, 362 F.3d 949, 952 (7th
Cir. 2004) (Illinois law). The magistrate judge, presiding over
the case by consent of the parties, ruled that the plaintiff had
not made a prima facie case of negligence, and so he granted
summary judgment in favor of the railroad, precipitating this
appeal.
The accident occurred at 9:40 p.m. in May 2007 in the small
town of Colona near Moline in northwestern Illinois. Madden
had almost reached the crossing when her car stalled. She re‐
started it and drove onto the crossing, whereupon the car
stalled again. Just then the crossing gates began to descend, the
warning lights at the crossing began flashing, and the crossing
bells sounded—unmistakable indications of an approaching
train. But rather than rush out of her car Madden tried to restart
it—at least that was the conjecture of an eyewitness, the driver
of one of two cars stopped at the crossing behind Madden’s car.
Noticing that Madden wasn’t getting out of her car, the driver
got out of his car and started walking toward the crossing. He
saw Madden open her car door when the train was only 45 to
50 yards from the crossing, get out, and start to run. The train
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struck the car, pushing it against her, causing injuries that
proved fatal.
An event recorder alongside the tracks at the crossing rec‐
orded that the warning lights had begun flashing, the bells
sounding, and the gates descending, all half a minute before the
train entered the crossing. The interval was consistent with the
witness’s affidavit. He had watched Madden try to restart her
car, had gotten out of his own car, and had walked toward her
at the crossing—and all this after the warning lights had begun
flashing. The event recorder had been inspected and found in
working order 19 days before the accident. (There was another
event recorder, in the locomotive, but because the locomotive
had been built in 1997 its recorder wasn’t required to, and did
not, record when the horn sounded as the train approached the
crossing. 49 C.F.R. § 229.135(b)(3).)
Three grown children of Madden—Michael, Jennifer, and
Carrie Dillard—visited the scene of the accident either a few
days, or a week or two (their testimony was in conflict), after
the accident. They decided to time the interval between when
the horn of an approaching locomotive is first heard and when
the locomotive reaches the crossing. But the testimony they
gave at their depositions about their efforts to determine the in‐
terval was inconsistent and confusing. Michael testified that he
and his two sisters were at the accident scene timing trains for
20 or 30 minutes, but Jennifer testified that they were there for
an hour and a half. And while she testified that they timed three
different trains, Michael and Carrie mentioned only one. Jen‐
nifer further testified that they had conducted the tests at noon.
But Michael testified that they had conducted them at dusk. He
also testified that all three had started timing the approach of a
train when they first heard the locomotive’s horn, but Carrie
said they didn’t start timing until they could see the train com‐
ing. Jennifer testified that Carrie did not time a train, and that
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the train that she and Michael timed had reached the crossing
between 12 and 13 seconds after they heard the horn. Michael
testified that the train had arrived 13 to 14 seconds after he
heard its whistle, but contradicted Jennifer’s and his own testi‐
mony that all three had timed the train’s approach, stating that
his sisters had instead been “watching mine [his watch] with
me for sure.” But Carrie testified that it was 13 to 14 seconds
after they saw (not heard) the train that it reached the crossing.
Michael was unsure which track he timed. There are two paral‐
lel tracks at the crossing, and they are about 100 feet apart and
each track has separate lights and gates.
He testified that the warning lights did not begin flashing
until 2 or 3 seconds before the train reached the crossing, but
Jennifer testified that they began flashing earlier, when the
train’s horn could first be heard, which was 12 to 13 seconds be‐
fore the train’s arrival at the crossing. Michael testified, contrary
to the affidavits of both drivers who had seen the accident, that
the gates came down “as the train was coming through” the
crossing. That, like the failure of the warning lights to flash un‐
til the locomotive was within 2 or 3 seconds of zooming
through the crossing, would be an incredible safety violation.
Neither sister corroborated Michael’s testimony.
Had Michael used a video camera instead of a watch to
time the trains, he might have had better evidence of the inter‐
val between when the gates, lights, etc. signaled the train’s ap‐
proach, and when it arrived at the crossing. (Better evidence,
but not irrefutable, given the possibility of editing a video.) As
it is, the testimony of the three amateur “testers” was too gar‐
bled to prove anything—which is doubtless why the plaintiff’s
briefs are devoted almost entirely to trying to rehabilitate her
two expert witnesses, railroad engineers all of whose proposed
evidence the magistrate judge excluded after hearing their tes‐
timony at the Daubert hearing. The expert evidence that they
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wanted to give was, as we’ll see shortly, hopelessly inadequate.
Anyway their conclusion that the plaintiff’s decedent hadn’t
had the full warning that the regulations required rested mainly
not on the technical evidence that they planned to give but on
their belief that the children had testified accurately. Vouching
for a lay witness is not expert testimony, e.g., United States v.
Vest, 116 F.3d 1179, 1185 (7th Cir. 1997); United States v. Benson,
941 F.2d 598, 604–05 (7th Cir. 1991); Nimely v. City of New York,
414 F.3d 381, 397–98 (2d Cir. 2005); an engineer’s training and
experience do not make him abler than a juror to evaluate the
consistency of lay testimony. For an expert to offer such an
evaluation is to wrap the lay witness in the expert’s prestige
and authority—a disreputable tactic that the plaintiff’s lawyer
should not have countenanced.
An expert could properly testify that if Michael’s testimony
that the crossing gates did not begin to descend or the warning
lights to flash before the train was within seconds of reaching
the crossing was true, then the event recorder beside the tracks,
which contradicted that testimony, must have been defective.
An expert could also properly testify that what Michael or Jen‐
nifer or Carrie claimed to have seen happen could as a technical
matter have occurred—but not that any of their testimony was
accurate.
The attempt at vouching in this case, besides being imper‐
missible, reflects poorly on the experts’ judgment, for no one
who had heard the children’s testimony or read a transcript of it
could think it worthy of belief, since it was a tissue of contradic‐
tions.
There is more wrong with the expert evidence. One of the
experts (Paul Bodnar) testified that the removal of the locomo‐
tive horn after the accident for testing (rather than the horn’s
being tested while it was on the locomotive) was suspicious;
maybe the railroad had taken the horn to a place where it could
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No. 12‐3018
be repaired without a railroad worker’s noticing. Much to that
expert’s surprise, in fact the horn was still on the locomotive
when it was tested. Bodnar also testified mistakenly that the
fact that the locomotive’s recorder had not recorded the sound‐
ing of the horn violated federal regulations.
The other expert (James Sottile) refused to accept the evi‐
dence from the trackside event recorder that there had been a
30‐second warning period before the collision with Madden’s
car. His reason was that the time shown on the recorder was
standard time rather than daylight saving time even though
daylight saving time had begun more than two months before
the accident. But the fact that the recorder displayed the wrong
hour did not affect the display that showed the 30‐second warn‐
ing period. He testified that the period shown on the recorder
was from “an hour prior to the accident.” No; undoubtedly it
was the warning period triggered by the train that hit Madden’s
car. The accident took place an hour before the time recorded
on the recorder only in the sense that daylight saving time dates
time an hour earlier than standard time. The expert testified
that the event recorder could have been tampered with, but
admitted that he had no evidence of that.
The plaintiff’s lawyer points out that three clocks recorded
the time of the accident, and the clock in the event recorder, the
clock in the dispatcher’s office, and the clock in the locomotive
all showed different times even after correction for the fact that
the hour setting in the event recorder had not been changed to
daylight saving time. But what mattered was not whether the
clocks were properly synchronized, but the intervals between
the activation of the crossing safety equipment and the sound‐
ing of the locomotive’s horn, and the train’s arrival at the cross‐
ing.
The lawyer insists that the railroad may have tampered
with the event recorder or misrepresented the results of the in‐
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spection of the locomotive’s horn after the accident. He asks us
to infer that since the hour setting on the recorder had not been
changed to daylight saving time maybe something else wasn’t
set properly, though there is no evidence of that. He failed to
depose any employee of the railroad in an attempt to determine
whether there was destruction of or tampering with evidence of
negligence. (Willful destruction of such evidence could support
an inference of negligence. E.g., Neace v. Laimans, 951 F.2d 139,
141–42 (7th Cir. 1991) (Illinois law).)
In his briefs and at the oral argument, both heavily focused
on the experts’ suspicion of the defendant’s records and testing
procedures, the plaintiff’s lawyer managed to lose sight of the
fact that before he could gain any purchase by undermining the
defendant’s evidence, he had to present enough evidence to
create a prima facie case—enough evidence that, were it all the
evidence in the case, would allow a reasonable jury to conclude
that it was more likely than not that the defendant had violated
the law. See, e.g., Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir.
2012). Neither the children’s testimony, reflecting their incom‐
petent efforts to reconstruct the accident, nor the experts’
worthless evidence, nor both bodies of evidence combined (0 +
0 = 0), would enable a reasonable jury to infer negligence on the
part of the railroad. The judgment is therefore
AFFIRMED.
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