Ast v. BNSF Railway Company
MEMORANDUM AND ORDER denying 75 Motion in Limine; granting 81 Motion to Exclude; denying 81 Motion for Sanctions. Signed by District Judge Eric F. Melgren on 1/26/2012. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT ALLEN AST,
Case No. 09-2519-EFM/DWB
BNSF RAILWAY COMPANY,
MEMORANDUM AND ORDER
Plaintiff is suing his former employer alleging that, due to Defendant’s negligent
maintenance, Plaintiff was injured while throwing a railroad switch. In its Second Motion in Limine
to Strike Testimony, Defendant asks the Court to exclude testimony from Plaintiff’s expert because
the expert relied on outdated internal inspection standards and inspected the switch in question three
years after Plaintiff’s accident. In response, Plaintiff filed a Motion to Exclude Late-Disclosed
Records, asking the Court to exclude previously-withheld records that Defendant recently produced
in support of its motion. The Court denies Defendant’s motion in limine because the expert’s report
is relevant and reliable, and objections dealing with the weight of proffered evidence are more
properly addressed on cross-examination. Upon agreement of the parties, the Court grants Plaintiff’s
motion and prohibits Defendant from referring to, introducing, or referencing at trial late-disclosed
I. Factual and Procedural Background
Plaintiff Robert Allen Ast alleges that he was injured in the course of his employment as a
conductor with Defendant BNSF Railway Company when Ast attempted to operate a “hard-tothrow” railroad switch on the 547E Main Line. Ast filed the instant action under the Federal
Employers’ Liability Act (“FELA”), claiming that BNSF was negligent in its maintenance of the
switch. According to Ast, BNSF knew or should have known the switch was defective and
hazardous to employees. Ast seeks damages for lost earnings and benefits, lost household services,
and non-economic damages related to past and future pain and suffering, lost quality of life, and
emotional damages. BNSF denies that Ast’s alleged injuries and damages were caused by a
workplace injury; alternatively, BNSF denies the alleged injury was foreseeable and contends that
Ast was contributorily negligent.
Ast’s expert in this case is Alan Blackwell, a former track engineer for several railroad
companies. On March 11, 2010, Blackwell completed an evaluation of the circumstances of Ast’s
injury. BNSF subsequently brought its first motion in limine to exclude information contained in
Blackwell’s report on the grounds that (1) the report relied on an inspection conducted by BNSF
after the accident and hearsay, and (2) the report constituted ultimate issue testimony.
Shortly after Blackwell published his report, Ast learned during the deposition of BNSF track
inspector William Darlington that BNSF failed to disclose records regarding the 547E Main Line
switch that BNSF had in its Track Inspection Management System (“TIMS”). Because these records
were not produced during discovery, Blackwell did not consult them when preparing his report, and
in fact, Blackwell assumed that BNSF had improperly failed to maintain inspection records.
Alleging prejudice, Ast moved the Court to bar BNSF from using the late-disclosed TIMS reports.
In an order addressing both of these motions, as well as BNSF’s motion for summary judgment, this
Court denied BNSF’s motion to exclude Blackwell’s testimony and declined to sanction BNSF for
failing to previously disclose the TIMS records. But the Court did allot Blackwell more time to
supplement his initial report and ordered BNSF to reimburse Ast for the reasonable costs associated
with these revisions.
Blackwell provided the parties with a supplemental expert report on July 15, 2011. As a
basis for this report, Blackwell reviewed the new TIMS records, Darlington’s deposition, and
performed a visual inspection of the 547E switch during an on-site visit to Amarillo. Blackwell
concluded: (1) BNSF “failed to maintain the switch components (switch points and rods) securely
in place”; (2) BNSF failed to maintain the ties and ballast as to prevent contact with switch rods as
required by internal standards; (3) BNSF failed to maintain anchors on switch ties on the turnout for
the Ben E. Keith switch; and (4) BNSF “failed to comply with the standards of care for maintaining
and inspecting switches and turnouts that are listed throughout [the] report.”1
Blackwell gave a deposition regarding his supplemental report on August 16, 2011. During
that deposition, BNSF asked several questions establishing that Blackwell’s report relied on the
2005 version of the BNSF Track Inspection Field Manual (“2005 Field Manual”). In particular,
BNSF questioned Blackwell about his reliance on Rule 2.5.1(B)(5) of the 2005 Field Manual, which
requires BNSF track inspectors to measure and record switch force with a switch stand torque
wrench. The 2005 Field Manual was disclosed to Ast during discovery, along with a copy of
BNSF’s authoritative Engineering Instructions dated December 2008.2 Upon receiving these
Doc. 76, Ex. 2, p. 8.
According to the description on its cover, the Field Manual is a smaller collection of the rules contained in
the Engineering Instructions that “can easily be carried and referenced in the field while conducting track inspection.”
Doc. 81, Ex. 7, p. 2. The Field Manual warns users that is “does not replace or supercede [sic] the Engineering
documents, Ast apparently made two assumptions: (1) the documents were one and the same, and
(2) because the accident happened in May 2008, the 2005 Field Manual was the controlling authority
at the time of the accident. Based on these assumptions, Blackwell relied on the 2005 Field Manual
when conducting his review and did not reference the 2008 Engineering Instructions, which did not
contain Rule 2.5.1(B)(5).
After Blackwell provided the parties with his supplemental report, BNSF moved the Court
to enter an order “prohibiting plaintiff, plaintiff’s counsel, and plaintiff’s witnesses, from presenting
before the jury, either directly or indirectly, any question, testimony, argument, statement, document,
or exhibit referring in any way” to most issues discussed in Blackwell’s report.3 BNSF claims that
the information in the report is inadmissible under Rules 403, 702, and 703 of the Federal Rules of
Evidence because the report (1) is unreliable, (2) will not assist the trier-of-fact, and (3) is based on
hearsay. BNSF’s objections stem from Blackwell’s reliance on BNSF’s 2005 Field Manual rather
than the authoritative, and conflicting, Engineering Instructions, as well as Blackwell’s assumption
that the switch in question had not been inspected or altered since the time of Ast’s accident.
To support its motion to exclude Blackwell’s testimony, BNSF included TIMS reports
showing that BNSF regularly inspected the track since the date of Ast’s accident. BNSF also
provided a 2006 version of BNSF’s Engineering Instructions showing that the rule that Blackwell
relied upon in his report requiring switch stand torque wrench measurements was not in effect at
the time of Ast’s injury. Claiming these reports were never disclosed, Ast moved the Court to
exclude the late-disclosed materials from trial or impose other sanctions for discovery violations.
Instructions.” Id. In other words, the Field Manual makes clear that the Engineering Instructions are the authoritative
rules for BNSF track inspections.
Doc. 75, p. 1.
BNSF responded that the Court should not consider Ast’s motion because he failed to comply with
Local Rule 37.2, which requires parties to meet and confer before bringing discovery disputes before
the courts. BNSF also argued that it did disclose a 2008 version of the Engineering Instructions that
was identical to the 2006 version—both Instructions show the deletion of Rule 2.5.1(B)(5).
Admissibility of Blackwell’s Expert Testimony
BNSF argues that Blackwell’s expert testimony should be excluded or limited with respect
to four aspects of Blackwell’s report: (1) observations of the a different switch than the 547E Main
Line switch, (2) conclusions that BNSF failed to comply with outdated internal standards, (3)
observations from Blackwell’s May 23, 2011, inspection of the switches, and (4) alleged hearsay
exhibits included in Blackwell’s report. The parties agree that only the 547E Main Line switch is
at issue in this lawsuit and Ast will not elicit at trial any testimony from Blackwell regarding other
switches. For the reasons set forth below, the Court concludes that BNSF’s remaining arguments
Outdated Internal Standards
BNSF takes issue with Blackwell’s conclusion that BNSF failed to comply with internal
standards requiring records of torque wrench measurements at turnouts. BNSF contends that
Blackwell’s report is incorrect because his opinion relies on outdated material in the 2005 Field
Manual rather than the 2006 Engineering Instructions. After reviewing the submitted exhibits, it is
clear that BNSF’s argument is a factual matter for the jury’s consideration. For example, Blackwell
stated that he relied upon deposition testimony from BNSF track inspector William Darlington that
it was standard practice for BNSF inspectors to use torque wrenches to measure switch throw
forces.4 Furthermore, Blackwell’s report cites the Federal Railroad Administration’s Track Safety
Standards.5 These provisions require railroads to inspect each turnout at least monthly and to keep
a record of all required inspections. Therefore, although BNSF did not have an internal policy that
required a record of turnout inspections at the time of Ast’s injury, the jury could find that BNSF
was not in compliance with FRA requirements. Consequently, BNSF’s argument that Blackwell’s
report is based on outdated internal standards is an issue for cross-examination or closing arguments
before the jury.
Blackwell’s Inspection of the Switches
BNSF next argues that the conclusions Blackwell drew from his own observations during
his May 23, 2011, inspection of the switches should be excluded as unreliable, not helpful to the
jury, and irrelevant. The majority of Blackwell’s supplemental report draws from his visual
inspection and operation of the 547E switch. And although Blackwell visited the site more than
three years after Ast was injured, Blackwell asserts that the conditions he witnessed in 2011 were
“substantially similar” to the conditions that existed at the time of Ast’s injury in 2008.6 BNSF
alleges that “any extrapolation by Blackwell that track conditions in 2011 can be equated to 2008
conditions is speculative at best and lacks the substantially reliable characteristics required by Rules
401 and 702.”7
Rule 702 of the Federal Rules of Evidence governs the admissibility of opinion testimony
from witnesses qualified as experts by their knowledge, skill, experience, training, or education.
See Doc. 81, Ex. 18, p.5.
49 C.F.R. §§ 213.235(a), 213.241(a), cited in Doc. 76, Ex. 2, p.12–13.
See Doc. 76, Ex. 5, p. 19.
Doc. 85, p. 5.
Under Rule 702, expert opinion testimony is admissible to assist the trier-of-fact in matters of
scientific, technical, or otherwise specialized knowledge, provided that such testimony (1) is based
upon sufficient facts or data, (2) is a product of reliable principles and methods, and (3) the witness
applied the principles and methods reliably to the facts of the case.8 As these requirements
demonstrate, the court is charged as a gatekeeper to admit only expert testimony that is relevant and
reliable.9 Consideration of proffered expert testimony is a flexible inquiry specific to the facts of
the case at bar.10
Before addressing the parties’ arguments in this case, it is necessary to clarify the proffered
expert testimony. Blackwell’s report contains his observations of his own inspection of the switch
at issue. The report also draws conclusions about the condition of the switch at the time of Ast’s
injury. These two assertions present different issues for the Court’s consideration.
First, Blackwell can testify to his personal observations of the track. Because the parties
agree that Blackwell is qualified as an expert,11 his personal observations of the switch are certainly
reliable. Furthermore, his observations are relevant to Ast’s claim for relief. Evidence is relevant
to a claim if it “has any tendency to make a fact more or less probable than it would be without the
evidence.”12 In a FELA action, a plaintiff must prove all common law elements of negligence,
Fed. R. Evid. 702.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
Id. at 593; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999) (rejecting formulaic
application of reliability factors discussed in Daubert because “[t]oo much depends upon the particular circumstances
of the particular case at issue”).
Ast apparently believed BNSF was questioning Blackwell’s qualifications, but BNSF clarified that it has no
qualms about certifying Blackwell as an expert, and instead objects to specific assertions in Blackwell’s report.
Fed. R. Evid. 401(a) (emphasis added).
including duty, breach, causation, and damages.13 To prove the element of causation, however, the
plaintiff need only show that his or her injuries stem “in whole or in part” from the employer’s
negligence.14 In other words, the evidence must allow the jury to reasonably conclude that the
employer’s negligence contributed to the plaintiff’s injuries in some way, however minor.15 Given
this low burden of proof, Blackwell’s observations about the present condition of the switch are
relevant because they lend credence to Ast’s assertions that the switch was hard to throw, and that
BNSF failed to maintain the switch in safe operating condition. In other words, if BNSF is presently
failing to inspect and maintain the switch, there is a greater likelihood that it also failed to do so
three years ago.
Second, although the admissibility of Blackwell’s opinion testimony about the condition of
the switch in 2008 presents a more difficult question, the Court concludes that his testimony is
admissible at trial. Certainly Blackwell’s opinion testimony is relevant to Ast’s claims, but as BNSF
argues, the reliability of that opinion is less certain. The Supreme Court has warned:
[N]othing in either Daubert or the Federal Rules of Evidence requires a district court
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.16
Although Blackwell did not include in his report evidence supporting his three-year extrapolation,
the Court does not find “too great an analytical gap” between Blackwell’s observations of the switch
See Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506 (1957).
45 U.S.C. § 51 (2006) (emphasis added).
See CSX Transp., Inc. v. McBride, __ U.S. __, 131 S. Ct. 2630, 2634 (2011) (“[A] defendant railroad caused
or contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in bringing about the injury.”).
General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
in 2011 and his opinion that similar conditions existed in 2008.17 The lapse in time between the
accident and Blackwell’s inspection affects the weight of Blackwell’s testimony rather than its
admissibility, and should be addressed at trial during cross-examination and arguments.18
Furthermore, Blackwell’s opinion about the 2008 condition of the track is not unduly
prejudicial under Rule 403.19 BNSF claims that Blackwell’s opinion testimony constitutes “temporal
based conclusions that are highly and unfairly prejudicial.” But BNSF misstates other courts’
holdings about temporal conclusions. The cases BNSF cites as support are wholly irrelevant
because they discuss the impropriety of inferring causation from a specific temporal sequence.20
If anything, these cases undercut BNSF’s argument that a temporal gap affects the reliability of
proffered evidence. Moreover, Blackwell’s opinion has great probative value as to BNSF’s
negligence and, because BNSF can adequately address its concerns about the helpfulness of
Blackwell’s testimony on cross-examination, it poses no unfair prejudice to BNSF.
See, e.g., Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.”); Newman v. State Farm Fire & Cas. Co., 290 Fed. App’x 106, 114 (10th Cir. 2008) (affirming the district
court’s conclusion that the defendant “ ‘barely’ made a sufficient showing of reliability and that the issues concerning
the experts’ opinions go to weight rather than to admissibility”); Goebel v. Denver & Rio Grande Western R.R. Co., 346
F.3d 987, 993 (10th Cir. 2003) (noting that an expert’s failure to exclude one alternative cause of injury went to weight,
not admissibility); Miller v. Union Pac. R.R. Co., 900 F.2d 223, 225 (10th Cir. 1990) (noting that an expert expressed
his conclusions in terms of probability and affirming the district court’s decision that “any doubts concerning the
plausibility of [the expert’s] conclusions go to the weight and not the admissibility of the testimony”).
Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice. . . .”).
In re Breast Plant Litigation, 11 F.Supp.2d 1217, 1232 (D. Colo. 1998) (“A temporal relationship by itself,
provides no evidence of causation.”); Schmaltz v. Norfolk & Western Ry. Co., 878 F.Supp. 1119, 1122 (N.D. Ill. 1995)
(“It is well settled that a causation opinion based solely on a temporal relationship is not derived from the scientific
method and is therefore insufficient to satisfy the requirements of Fed. R. Evid. 702.”).
Hearsay Exhibits Supporting Blackwell’s Supplemental Report
Finally, BNSF argues that Blackwell’s report relies upon inadmissible hearsay in the form
of standards utilized by Union Pacific Railroad, Canadian Pacific Railroad, and CSX Rail, which
all call for recorded inspections of switches. As the Court noted in its previous order in this case,21
Rule 703 permits experts to rely upon other inadmissible evidence “[i]f experts in the particular field
would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”22
Regardless of whether these other railroad standards are offered for the truth of the matter asserted,
they undoubtedly fall within the purview of Rule 703. BNSF alleges that these documents are an
improper basis for Blackwell’s opinion because they are not commonly-held “industry standards”
and because Blackwell failed to explicitly list these documents as the type “reasonably relied on in
the field.” But neither Rule 703 nor any controlling case law require an expert to explicitly,
physically label documents as the type reasonably relied upon by the relevant field. Nor is an expert
required to confine his or her opinion to authoritative standards binding on the defendant. To form
an opinion about whether BNSF acted negligently in this case, it was reasonable for Blackwell to
look to the practices of other railroads. In fact, it is common practice in negligence cases to compare
the actions of a defendant company to those of a reasonably prudent company in the same or similar
Doc. 65, p.7.
Fed. R. Evid. 703.
See, e.g., Denning Warehouse Co. v. Widener, 172 F.2d 910, 913 (10th Cir. 1949) (“[T]he failure to observe
a custom, or the observance of it, does not necessarily amount to due care or the lack of it, but it is admissible as
evidence tending to show what an ordinary prudent man would do under the same or similar circumstances.”); see also
Briggs v. Washington Metro. Area Transit Auth., 481 F.3d 839, 847–48 (D.C. Cir. 2007) (affirming judgment for the
defendants in a negligence case where the plaintiff’s expert failed to cite specific transportation standards and instead
addressed broad national policies); Worsham v. A.H. Robins Co., 734 F.2d 676, 685 (11th Cir. 1984) (discussing, but
not requiring, expert testimony as to whether the defendant pharmaceutical company violated the standard of care
applicable to a reasonably prudent pharmaceutical company).
In sum, Blackwell’s opinion testimony is admissible at trial because it is relevant to Ast’s
claims that BNSF’s negligence contributed to his workplace injury. The three-year gap between
Ast’s injury and Blackwell’s inspection of the switch does not destroy this relevancy, and any
qualms BNSF has about the reliability of Blackwell’s opinion can be adequately addressed at trial.
Ast’s Motion to Exclude Late-Disclosed Evidence
As previously noted, BNSF’s motion to exclude Blackwell’s testimony was premised on
previously undisclosed TIMS reports and a version of BNSF’s Engineering Instructions dated 2006.
BNSF produced these records following Blackwell’s second deposition on August 16, 2011. Upon
receipt, Ast moved the Court to exclude these records and impose any other sanctions the Court
deems necessary. In response, BNSF argues that Ast failed to comply with Local Rule 37.2, which
states: “The court will not entertain any motion to resolve a discovery dispute . . . unless the attorney
for the moving party has conferred or has made reasonable effort to confer with opposing counsel
concerning the matter in dispute prior to the filing of the motion.”24 Rule 37.2 further states that “a
reasonable effort to confer” requires that the parties “in good faith converse, confer, compare views,
consult, and deliberate” the discovery dispute.25
The Court finds that Ast did attempt to resolve this discovery issue with BNSF outside the
Court. At Blackwell’s second deposition, Ast’s attorney explicitly renewed his discovery request
for all relevant TIMS records:
[Y]ou have now referenced in this deposition, you have been using your fingers, 4
inches tall worth of TIM [sic] records that you have told us all on the record exist
and we do not have 4 inches tall of TIMS records. So if you have those, we would
D. Kan. R. 37.2.
certainly appreciate you complying with Rule 26 and turning them over
The attorneys then spoke off the record and when they returned, Ast’s attorney asked BNSF to look
through its records and ensure that all discoverable documents had been disclosed. BNSF did as Ast
requested, and then used the previously-withheld documents as a basis for BNSF’s motion to
exclude the testimony of Ast’s expert witness. Favoring substance over form—and recognizing that
there comes a point in the litigation process when a discovery conference serves little or no
purpose—the Court finds that Ast substantially complied with Local Rule 37.2.27 But rather than
imposing sanctions on BNSF, the Court—with the agreement of both parties—prohibits BNSF from
referring to, introducing, or referencing at trial any documents produced after Blackwell’s second
deposition on August 16, 2011.
IT IS ACCORDINGLY ORDERED this 26th day of January, 2012 that Defendant’s
Second Motion in Limine to Strike Testimony (Doc. 75) is hereby DENIED. Plaintiff’s Motion to
Exclude Late-Disclosed Records (Doc. 81) is GRANTED, and Defendant is hereby prohibited from
referring to, introducing, or referencing at trial any documents produced after August 16, 2011.
IT IS SO ORDERED.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
Doc. 81, Ex. 18, p.12.
See Roth v. Green, 466 F.3d 1179, 1191 (10th Cir. 2006) (holding that a party seeking sanctions
“substantially satisfied” a local rule requiring parties to meet and confer when the party first sent opposing counsel a
letter asking that frivolous claims be voluntarily dismissed).
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