Chiriboga v. National Railroad Passenger Corporation et al

Filing 152

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 6/9/2011.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN CHIRIBOGA, individually,
and as Administrator of the Estate of
Joyce Chiriboga, Deceased,
Plaintiff,
vs.
NATIONAL RAILROAD PASSENGER
CORPORATION, et al.,
Defendants.

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08 C 7293

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This case comes before the court on the motion of Defendant National Railroad
Passenger Corporation (“Amtrak”) to bar the Plaintiff John Chiriboga (“Chiriboga”)
from using the expert testimony of John Senders, Kenric Van Wyk, and Richard Beall.
For the reasons set forth below, the motion is granted in part and denied in part.
BACKGROUND
This case arises out of an accident that occurred on November 8, 2008, at the
Edgebrook railway station in Chicago. In short, that night, Diane Moss (“Diane”) and
her sister, Joyce Chiriboga (“Joyce”), entered the Edgebrook station on the opposite
side of the tracks from where Diane was supposed to board a northbound train. To reach
the correct platform, the sisters needed to cross the tracks via the pedestrian crosswalk.

Diane decided to cross the tracks and Joyce followed her. As Joyce and Diane were
crossing the tracks, a southbound Amtrak train struck and killed Joyce. Chiriboga,
individually and as administrator of the estate of Joyce, filed a complaint against
Amtrak asserting a wrongful death claim under 740 Ill. Comp. Stat. 180/0.01. Following
the completion of all discovery, including expert discovery, Amtrak filed a motion for
summary judgment. In opposition to Amtrak’s motion for summary judgment,
Chiriboga offers the expert testimony of John Senders (“Senders”), Kenric Van Wyk
(“Van Wyk”), and Richard Beall (“Beall”). Amtrak now moves to exclude the expert
opinions.
LEGAL STANDARD
The admissibility of expert testimony is governed by Federal Rule of Evidence
702 and the standard of review established in Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993) and United States v. Parra, 402 F.3d 752, 758 (7th Cir. 2005). To
be admissible, expert testimony must be offered by a person qualified as an expert by
their knowledge, skill, experience, training, or education and assist the trier of fact to
understand the evidence or to determine a fact in issue. Fed. R. Evid. 702. The
testimony must be based on facts and data that reliably relate to the facts of the case and
that are proven by a valid theory or technique. Daubert, 509 U.S. at 593. The admission
or exclusion of expert testimony is a matter left to the discretion of the trial judge.

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Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990). Whether a particular
witness is qualified as an expert is determined by comparison of the area in which the
witness has superior skill, knowledge, education, or experience with the subject matter
of the witness’ proposed testimony. Id.
DISCUSSION
I.

Motion to Bar Senders’ Expert Testimony
Chiriboga proposes Senders as an expert in human vision and human factors.

Senders has proffered four opinions that are relevant to the instant motion and
summarized as follows:1
(1)

Chiriboga’s Statement of Additional Fact 33 (Opinion 1): It is possible
that at the time of the accident, Joyce did not check if any southbound
train was coming from her left-hand side, because she was either looking
down at the unfamiliar crosswalk or at Diane who was leading the way
across the tracks;

(2)

Chiriboga’s Statement of Additional Facts 34 and 35 (Opinion 2): It is
reasonable to expect that in deciding to follow Diane across the tracks,
Joyce relied on Diane’s decision that it was safe to cross and was probably
looking to the right when Diane was also looking to the right for the
northbound train;

(3)

Chiriboga’s Statement of Additional Fact 36 (Opinion 3): Even if Joyce
looked to the left and saw the train’s headlights, she still would not have
recognized them as a moving source of light because a brief glance at an
object that is 300 feet away does not suffice to detect motion; and
1

A close reading of Amtrak’s motion reveals that Plaintiff’s Statement of Additional Facts 32, 37,
and 38 are not disputed by Amtrak. Consequently, we will confine our inquiry to Plaintiff’s Statement of
Additional Facts 33 to 36 and 39.

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(4)

Chiriboga’s Statement of Additional Fact 39 (Opinion 4): Joyce was
standing in the middle of the inbound track when she became aware of the
train’s presence, three seconds before the impact.
Chiriboga has retained Senders to reconstruct the November 8, 2008 accident and

to provide an expert opinion on whether Joyce could have seen the lights of the
locomotive before she started walking onto the crosswalk. Having reviewed Senders’
report and deposition, this Court will bar Senders’ testimony in its entirety for the
following reasons: (1) Senders does not qualify as an expert; (2) his opinions are not
sufficiently based on the facts of the case, nor do they rely on scientific principles or
methods; (3) his opinions do not assist the trier of fact; and (4) Chiriboga’s reliance on
Senders’ opinions 3 and 4 are violative of federal and local rules of civil procedure.
A.

Federal Rule of Evidence 702
First, the Court is not persuaded that Senders has the expertise that would allow

him to testify about the November 8, 2008 events. A witness qualifies as an expert
because of his knowledge, skill, or experience. Fed. R. Evid. 702. Also, an expert’s
opinion must have a “reliable basis in the knowledge and experience of his discipline.”
Daubert, 509 U.S. at 592. Although Senders’ curriculum vitae reveals that he is highly
qualified in psychology and human behavior, his discipline does not pertain to human
behavior and vision at crossing intersections. See Senders Dep. 38. During his career,
Senders has never conducted any research on human behavior at roadway intersections,
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railroad crossing intersections, or on the ability of pedestrians to see locomotive lights
in nighttime conditions. Id. at 38. Senders has never been a member of a committee
designed to assess or study human behavior at highway or railroad intersections, or a
peer reviewer of studies relating to human behavior at railroad or roadway intersections.
Id. at 39-40. Even though Senders published a “short note on the interaction between
traffic lights at intersections,” this exposure is irrelevant and dated - “it might have been
30 or 40 years ago.” Id. at 41. Moreover, Senders does not show how his general
experience and knowledge in psychology and human behavior is transferrable to human
behavior and vision at highway or railroad crossing intersections. Because there must
be some degree of correlation between the expert’s superior knowledge and the subject
matter of the offered opinions, this Court concludes that Senders does not have
sufficient qualifications for his opinions.
Furthermore, even were Senders an incontrovertible expert in human behavior
and vision at railroad intersections, his opinions are not sufficiently grounded in the
facts of the case. In assessing the admissibility of expert testimony, it is “critical under
Rule 702 that there be a link between the facts or data the expert has worked with and
the conclusion the expert’s testimony is intended to support.” United States v. Mamah,
332 F.3d 475, 478 (7th Cir. 2003). Senders’ opinions 1, 2, and 3 do not meet this basic
test. Senders wishes to opine that on November 8, 2008, Joyce might have been looking

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at the ground while crossing the tracks, might have been looking at her sister, might
have looked to her right because of the Devon Avenue warning bells, or might have
looked to her left where she might have detected the approach of a train or might not
have understood it was a train. For example, Senders states that:
“[Joyce] may have looked in either direction along the tracks. Or she may
have not looked to either side since she was following her sister.
If she had looked to the left she might have seen the lights of the
approaching locomotive. If she had looked to the right she would not have
seen anything on the tracks. We have no way of knowing whether she
looked to either side.”
Senders report at 2.
A review of the record discloses that Senders does no more than provide a list of
possibilities that are unsupported by any reliable facts in the record. When Senders was
asked whether it was likely or not that Joyce would have looked at the locomotive and
for how long, Senders answered: “I cannot say how long she would look.” Id. at 135.
When Senders was asked whether the record contained any information as to the
direction of Joyce’s look, he replied “I don’t think I found any evidence whatsoever
other than the fact that she followed her sister onto the tracks.” Id. at 53-54. There is no
sufficient factual record to determine what actions Joyce took and in what directions she
looked. Absent some actual foundation, to suggest what Joyce might have done is

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speculation on Senders’s part. Accordingly, Senders cannot provide the jury with
reliable expert opinion as to what did or did not occur.
Additionally, there is no indication that Senders applied any specialized
knowledge or skill to the task he was asked to perform. Even “[a] supremely qualified
expert cannot waltz into the courtroom and render opinions unless [they] are based upon
some recognized scientific method.” Clark v. Takata Corp., 192 F.3d 750, 750 n.5 (7th
Cir. 1999). “An expert’s report that does nothing to substantiate [his] opinion is
worthless, and therefore inadmissible.” Minasian v. Standard Chartered Bank, 109 F.3d
1212, 1216 (7th Cir. 1996). Here, Senders offers no meaningful statistics, studies, or
comparisons to substantiate his opinions about Joyce’s direction of look or detection of
light and motion. Nor does he analyze any reports of similar accidents that occurred in
that specific stretch or in analogous contexts. Because of a patent lack of actual
evidence and scientific analysis, Senders is unable to adequately reconstruct the
accident and reach a conclusion as to the probable cause of the accident.
This lack of scientific analysis leads to an additional shortcoming. Senders’
opinions are not helpful to jury. To be admissible, expert testimony must assist the trier
of fact to understand or determine a fact in issue. Daubert, 509 U.S. at 592. Senders’
findings regarding Joyce’s direction of look or actions while trailing Diane are nothing
more than commonsense observations that fall within the scope of a juror’s ordinary

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knowledge. Here, Senders merely provides a list of possible actions undertaken by
Joyce while she was attempting to cross the tracks. A jury could infer, without the
assistance of an expert, whether Joyce was influenced by her sister’s decisions, or
whether she looked in all possible directions. For all the abovementioned reasons,
opinions 1, 2, and 3 are not admissible under Rule 702.
For much the same reasons, the Court finds Senders’ opinion 4 to be
inadmissible. In his attempt to reconstruct the accident, Senders does not rely on actual
evidence supplied by the record. Although Senders uses the actual geography and
measurements of the crossing, he does not indicate whether he relied on the train’s
actual speed, the actual positions of the actors at the crossing, or their actual walking
speeds. Because of this lack of actual evidence, Senders provides a “range of possible
times” and an array of arithmetic calculations based on alternative walking speeds.
Senders is attempting to estimate Joyce’s actual walking speed but does not rely on hard
data because he “do[es] not know any of their [walking] speeds.” Senders Dep. 82. The
principal problem with this analysis is that there is no evidence in the record from which
a reasonable jury could infer that any of the factual scenarios depicted by Senders more
likely than not occurred. Senders’ simply speculates as to what speed Joyce might have
walked and where she might have been standing.

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In addition to the lack of foundation, the Court has difficulty in discerning what
calculations Senders followed to reach his conclusions. For example, one of Senders’
possible scenarios inexplicably places Joyce half way between the rails when she
realized, three seconds before impact, that a train was coming at her. Senders then
assigns about .4 seconds to Joyce’s duration of glance at the locomotive because “data
from US Air Force studies show that the [average] fixation time of pilots performing an
instrument landing and scanning instruments on the instrument panel of an airplane, is
about 0.4 seconds.” Senders then states that Joyce did not have enough time to escape
from the train by comparing her pace of motion with that of professional athletes. “The
general run of trained athletes take[s], on average, 194 [milliseconds] to react to the
starter’s gun and on average [] 422 milliseconds to leave the block entirely.” Aside from
the fact that Senders does not identify the authorities supporting these calculations, he
does not explain how glances of pilots and reaction speeds of athletes are reasonably
analogous to the facts of our case. Clearly, there is too great of an analytical gap
between the data and the opinion proffered. See Gen. Elec. Co. v. Joiner, 522 U.S. 136,
146 (1997). The reliability of Senders’ calculations is further undercut by the fact that,
during his career, Senders has never studied human behavior or walking speeds in
various settings, particularly at railroad crossings. Id. at 96. Because Senders’

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haphazard conclusions are not supported by rigorous scientific calculations, the Court
excludes opinion 4.
In sum, Senders’ entire testimony provides nothing more than speculative
possibilities about what Joyce might or might not have done, and where she might or
might not have looked before the accident. Senders’ opinions are not based on sufficient
facts, are not the product of reliable principles and methods, and are not helpful to the
jury. Accordingly, the Court bars Senders’ testimony in its entirety.
B.

Federal and Local Rules of Civil Procedure
There are additional reasons that allow us to exclude Senders’ opinions 3 and 4.

The Court excludes Senders’ opinion 3 because it was not previously expressed in
Chiriboga’s disclosures under Federal Rule of Civil Procedure 26 disclosures. Rule
26(a)(2) requires a retained witness to provide a report containing his opinions and the
basis and reasons for the opinions. Walsh v. McCain Foods Ltd., 81 F.3d 722, 727 (7th
Cir. 1996). A party that fails to comply with Rule 26(a)(2) “is not allowed to use that
information . . . to supply evidence on a motion . . . unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37 (c)(1). This sanction is automatic and
mandatory. Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008). In his
report, Senders stated that the purpose of his analysis was to examine whether Joyce
could have seen the lights of the locomotive before she started walking onto the

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crosswalk. However, nowhere in the report do we find the slightest information
regarding decedent’s inability to detect motion from the train’s headlights or any
scientific data backing such an assertion. In his deposition, Senders’ belatedly states that
anything over 300 feet away is difficult or impossible to detect in a brief glance. A party
may not cure “deficient expert reports by supplementing them with later deposition
testimony.” Id. at 642. Senders’ untimely statement, made during his deposition, does
not provide sufficient notice to opposing counsel of the contents of the expert’s report.
Chiriboga also has failed to demonstrate how the discovery violation was either justified
or harmless. For this additional reason, we exclude Senders’ opinion 3.
The Court also excludes Senders’ opinion 4 because Chiriboga does not conform
to Local Rule 56(a)(1)(3). In his amended statement of additional facts, Chiriboga
purports to use Senders opinion 4 to conclusively establish that Joyce was actually
between the rails of the inbound track when she became aware of the train, or its bell,
3 seconds before the impact. However, an examination of the report reveals that Senders
does not conclude that Joyce was half way between the rails 3 seconds before impact
but merely assumes that she was, based on the testimony of Diane and the locomotive
engineer. Because Chiriboga’s citation to the record distorts Senders’ opinion, the Court
excludes Senders’ opinion 4.

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II.

Motion To Bar Van Wyk’s Expert Testimony
Amtrak moves to bar the following opinions rendered by Van Wyk, Chiriboga’s

disclosed acoustical engineer:2
Chiriboga’s Statement of Additional Fact 21:
(1) human beings can become desensitized to a particular sound by
hearing similar sounds in a restaurant, on the radio or on a train platform;

(2) a horn is a more useful warning device than a bell because it
implements multiple tones at higher decibel levels and is sounded in a
particular pattern;
(3) to be an effective warning signal of a train’s arrival, a bell must be
rung at least as long and as loudly as a horn.

Amtrak asks the Court to exclude Van Wyk’s expert testimony because opinions
1, 2, and 3 go beyond the scope of the disclosed expert report.3 Chiriboga retorts that
although these opinions were not expressly stated, they are implicit in Van Wyk’s

2

Chiriboga does not object to Amtrak’s motion to bar Van Wyk’s opinions indicating that:
(a) the ringing of an Amtrak train bell does not give adequate notice to a pedestrian that a train is in arrival;
(b) to change human behavior, a train bell needs to be heard for 10 to 15 seconds;
(c) that assuming the bells, lights, and gates at the nearby Devon Avenue road crossing were activated, they
likely drew the Joyce’s attention to the south;
(d) additional visual, audible and physical indicators of approaching trains would have prevented Joyce from
attempting to cross the track; and
(e) a train bell is usually associated with a slow moving train while a train horn is associated with a fast
moving train. We therefore grant Amtrak’s motion to bar the abovementioned opinions.
3

Amtrak also submits that Van Wyk’s qualifications do not allow him to render the proffered
opinions. For purposes of our analysis, we will assume without deciding that Van Wyk is a qualified expert
in the areas in which he is asked to offer his testimony.

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opinions. Rule 26(a)(2)(B) mandates the disclosure of a written expert report that
contains “a complete statement of all opinions the witness will express and the basis and
reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(I) and (ii) (emphasis added). Although
the “purpose of these reports . . . is not to replicate every word that the expert might
say,” it has to “convey the substance of the expert’s opinion . . . so that the opponent
will be ready to rebut, to cross-examine, and to offer a competing expert if necessary.”
Walsh v. Chez, 583 F.3d 990, 994 (7th Cir. 2009). Here, Van Wyk’s report suffers from
an insurmountable flaw. Chiriboga attempts to offer findings that deviate from the
established scope of Van Wyk’s opinion. Van Wyk was hired to measure the level of
ambient noises at the Edgebrook train station and concluded that the station is heavily
impacted by other nearby noise sources. However, his report entirely lacks information,
either explicit or implicit, as to the loudness or warning attributes of a train bell versus
a train horn. The report also makes no mention of people being desensitized when
exposed to certain sounds. Nor can we find in the report any scientific analysis
supporting such propositions. There is an obvious disconnect between Van Wyk’s
conclusions and Chiriboga’s assertions in the statement of additional facts.4 We

4

Chiriboga’s statement of additional facts does not provide us with the precise reference in the
record where Van Wyk allegedly analyzes and compares the loudness and audibility of a horn in relation with
a bell. Furthermore, although Van Wyk refers to desensitization of a human being’s audibility in his
deposition, a party is not allowed to supplement his deficient report with subsequent deposition testimony.
Ciomber, 527 F.3d at 642.

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conclude that the report does not meet the standard required by Rule 26(a)(2) and grant
Amtrak’s motion to bar Van Wyk’s expert testimony.
III.

Motion To Bar Beall’s Expert Testimony
Amtrak next moves to bar the following expert testimony of Beall, Chiriboga’s

disclosed locomotive engineer5:
(1)

Chiriboga’s Statement of Additional Fact 29: the Amtrak engineer should have
seen Joyce before she reached the tracks and blown the train horn as a
warning;

(2)

Chiriboga’s Statement of Additional Fact 30: the Amtrak engineer operated his
train in violation of Rules 1.1, 1.1.1, and 1.47. of the General Code of Operating
Rules (“GCOR”).6
Amtrak contends that the Court should exclude opinions 1 and 2 because there

is no factual basis for Beall to conclude that the Amtrak engineer should have detected
Joyce while approaching the tracks, should have sounded the horn, or that the engineer
violated the GCOR rules.7 In determining admissibility of expert testimony, a court

5

Chiriboga’s statement of additional facts 22 to 28 are undisputed. We therefore grant Amtrak’s
motion to bar Beall’s expert testimony as to those opinions.
6

Chiriboga withdraws Beall’s opinion that the Amtrak engineer violated GCOR Rule 1.6.

7

It is unclear whether Amtrak disputes the fact that Beall is qualified to express opinions 1 and 2.
In any event, the Court is satisfied with Beall's qualifications. When assessing the reliability of an
engineering expert's testimony, the trial court must consider, among other factors, the expert's particular
expertise and the subject of his testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999).
A review of Beall's curriculum vitae reveals that Beall has worked for several years as a train engineer and
as a conductor on passenger trains. His resume also indicates that Beall has served as Safety Director for First
American Railways, has given numerous lectures and presentations on railroad safety, and has trained
railroad personnel on compliance with railroad rules and safety. Accordingly, we conclude that Beall holds

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must assess whether the testimony is sufficiently rooted in the facts of the case at issue
to enable it to assist the jury’s resolution of a factual dispute. Daubert, 509 U.S. at 591.
An analytical gap between the applicable facts and the proffered opinion cannot be
bridged by the expert’s ipse dixit. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
Amtrak’s arguments fail for several reasons. First, Beall has a long history of
conducting trains and implementing safety rules for train personnel; doubtless, he has
obtained a considerable level of expertise beyond that of an average person as to how
a train is generally handled. Second, before reaching his observations, Beall reviewed
the event recorder printouts of the front and rear locomotives, the Chicago Police
accident report, and the deposition of Abfalder (“Abfalder”), the Amtrak engineer who
was driving the train that struck Joyce. In his report, Beall notes that Abfalder testified
that “when [he] first saw the individual, they weren’t at a rail yet.” (emphasis added).
Based on that statement, Beall concluded that Abfalder had to have seen them at least
approach the tracks and that, under the rules, nothing impeded Abfalder from sounding
the horn as a warning. There is no analytical chasm between opinions 1 and 2 and the
ascertainable facts of this case. Finally, we believe that Beall’s observations and
experience may prove helpful to the jury in resolving the factual issues of this case. We
also note that Amtrak neglected to depose Beall or hire its own expert to challenge
extensive experience in the railroad industry and qualifies as an expert in the areas in which he is asked to
offer testimony.

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Beall’s findings. We therefore conclude that Beall’s assumption, that the Amtrak
engineer violated safety rules because he should have seen Joyce before she reached the
tracks, finds support in the physical facts as described by the reports and other evidence
in the record. Accordingly, we decline to exclude Beall’s opinions 1 and 2 on this basis.
CONCLUSION
Based on the foregoing analysis, Amtrak’s motion to bar expert testimony is
granted in part and denied in part.

Charles P. Kocoras
United States District Judge
Dated: June 9, 2011

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