National Railroad Passenger Corp. et al v. Cimarron Crossing Feeders, LLC. et al

Filing 529

MEMORANDUM AND ORDER granting 398 , 400 , 402 and 463 Plaintiffs' Motions for Summary Judgment; granting 432 , 436 , 438 , 478 and 480 Plaintiffs' Motions to Strike/Exclude (denying the request to impose sanctions and for heari ng); granting 464 Plaintiffs & 472 Intervenor Plaintiffs' Motions for Leave to File Conventionally and Under Seal; denying 468 Plaintiffs' Motion for Review; granting 504 Joint Motion for Extension of Time to file responsive pleadings. Signed by District Judge J. Thomas Marten on 11/14/2018. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NATIONAL RAILROAD PASSENGER CORP.
and BNSF RAILWAY COMPANY,
Plaintiff,
and
EVERETT OWEN, et al.,
Intervenors

No. 16-1094-JTM

vs.
CIMARRON CROSSING FEEDERS,
Defendants.

MICHAEL LEE ROUNDS,
Plaintiff,
vs.

No. 18-1081-JTM

NATIONAL RAILROAD PASSENGER CORP.,
doing business as AMTRAK, et al.,
Defendants.

MEMORANDUM AND ORDER

On March 13, 2016, employees of Cimarron Crossing Feeders left a large feed truck
unattended. The truck rolled down a hill, crossed a highway, and smashed into train
tracks owned by BNSF Railway. The Cimarron employees retrieved the truck — but told
no one of the accident, or the fact that the truck had bent the rails about nine inches out

of alignment. Shortly after midnight the next day, an Amtrak passenger train reached the
misalignment and derailed.
Amtrak and BNSF have sued Cimarron for negligence, recklessness, and trespass.
Several passengers, intervening in this action and presenting a separate claim (Rounds v.
National R.R. Passenger Corp., No. 18-1081-JTM (D. Kan.)), have made claims against
Cimarron, but also have advanced various claims against Amtrak and BNSF. Cimarron
denies liability, contends that Amtrak and BNSF were acting as a joint venture, and
argues that their fault contributed to the accident. The matter is scheduled for trial on
liability issues to begin December 6, 2018.
The present Order addresses Motions for Summary Judgment filed by plaintiffs
Amtrak and BNSF (Dkt. 398, 400, 402, 463) as to the claims made against them, as well as
various related motions. (Dkt. 432, 436, 438, 478, 480, 482). The court denies plaintiffs’
appeal (Dkt. 468) from the decision of the Magistrate Judge to permit plaintiffs to add to
the Pretrial Order (Dkt. 461) claims by the Intervenor that the Amtrak locomotive used a
defective headlight. While recognizing a close question, the court also denies plaintiffs’
request for sanctions against Intervenors’ counsel for the submission of evidence in bad
faith. The court otherwise grants plaintiffs’ motions.
There is nothing in the voluminous record to establish any legal fault on the part
of Amtrak or BNSF. The only party potentially liable for damages from the derailment is
Cimarron.

2

Findings of Fact
Summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show there is no
genuine issue as to any material fact, and that the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment,
the court must examine all evidence in a light most favorable to the opposing party.
McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for
summary judgment must demonstrate its entitlement to summary judgment beyond a
reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The
moving party need not disprove plaintiff's claim; it need only establish that the factual
allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812
F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely
upon mere allegations or denials contained in its pleadings or briefs.

Rather, the

nonmoving party must come forward with specific facts showing the presence of a
genuine issue of material fact for trial and significant probative evidence supporting the
allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party
has carried its burden under Rule 56(c), the party opposing summary judgment must do
more than simply show there is some metaphysical doubt as to the material facts. "In the
language of the Rule, the nonmoving party must come forward with 'specific facts
showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita).
3

One of the principal purposes of the summary judgment rule is to isolate and dispose of
factually unsupported claims or defenses, and the rule should be interpreted in a way
that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).1
The morning before the accident, two Cimarron employees were working on the
company’s feed lot, which is located north of Highway 50 and the BNSF rail line. Kevin
Ornelas was operating the feed mill and Arturo Carillo was operating a feed truck, a 2004
Kenworth grain hauling truck, which had an empty weight of at least 26,900 lbs. and had
gross vehicle weight range of 26,000 to 33,000 pounds.
Carillo had made several feed lot runs that morning before Ornelas asked him for
help unplugging a “soak leg” that had become clogged on the feed mill. Ornelas needed
Carillo to open and close a gate at ground level that runs corn up into the soak tanks, so
that Ornelas, standing up on a catwalk over the soak tanks, could make sure the
downspout was clean.
Carillo parked the truck next to the soak tanks and grain elevators facing south in
the direction of the railroad track. As Carillo left the truck to help Ornelas, it was parked
on an incline facing in a downhill direction away from the mill and toward the highway
and railroad tracks.2

The court excludes from these findings all assertions of fact, or attempted denials, which wee submitted
without specific and accurate citations to the record, or touch on matters not relevant to the issues before
the court..
1

Cimarron’s standard procedures required employees to set parking brakes of equipment and prohibited
employees from parking trucks or other equipment on hills or leaving them in any position where they
could roll. Carillo was later disciplined by Cimarron for not setting the brakes of the feed truck when he
2

4

Some time between 10:00 and 11:00 a.m., Ornelas, with a clear view of the truck
from atop the soak tank catwalk, watched the truck start to roll and yelled down to Carillo
that the truck was rolling away.
Carillo went to get his personal truck, losing sight of the run-away feed truck in
the process.
Ornelas saw the runaway feed truck roll down the hill, across Highway 50, into
the ditch running parallel to the train tracks on the south side of the highway, up the
opposite side of the ditch, and then back down into the ditch where it stopped, still facing
south. The momentum of the thirteen-ton truck was enough that when it crossed the
highway into the ditch it became airborne.
In the ditch, the truck’s undercarriage bottomed out before it continued, striking
the rail track roadbed. The impact caused a displacement of between seven to ten (but
most typically described as a nine) inch displacement of the tracks.
The Kansas Highway Patrol later documented the continuous path of travel of the
Cimarron feed truck, the tire mark evidence matching the truck to the railroad track bed
damage, and, most importantly, the impact of the truck’s bumper with the railroad
roadbed causing the railroad tracks to be pushed to the south. The truck hit the track
roadbed at a perpendicular angle and stopped when the front bumper struck the railroad
roadbed on the north side of the track, shifting the railroad ties and track to the south.

left it and letting it roll down the hill, safety violations, negligence and for disregarding previous
instructions not to park feed trucks on a hill.

5

To reach the feed truck, Carillo drove his personal truck across Highway 50,
crossed the railroad tracks at a grade crossing on the south side of the highway, and
turned right on a dirt road on the south side of, and running parallel to, the tracks. Carillo
parked his personal truck on the dirt road directly across the tracks from where the
Cimarron feed truck had come to rest, and walked right over the damaged track.
Carillo found the still-running feed lot truck in the ditch, sitting perpendicular to
the railroad tracks. He moved the truck away from the tracks and drove it back up to the
feed lot where he told Rita Tobyne, Cimarron’s head feed truck driver, what happened.
He asked her to call feed lot manager Maynard Burl and tell him the feed truck had rolled
to the other side of Highway 50. Tobyne said she was not going to call Burl.
Carillo then asked Ornelas to call Burl, which Ornelas did, asking Burl to come out
to the feed lot. Ornelas has testified that, while they were waiting for Burl to arrive, he
took Carillo back down to the railroad tracks to retrieve his personal vehicle.
At the time the truck hit the BNSF tracks, there was a railroad crossing sign near
where the truck impacted the tracks, which also contains a blue sign with a 1-800 phone
number to report problems or emergencies to BNSF.
Ornelas saw the sign as he crossed over the tracks and was aware of the sign, but
neither he nor any other Cimarron employee called the 1-800 phone number to report the
truck runaway incident.
When Burl came to the feed lot, Ornelas showed him the path the truck had taken
down the hill, and told him that the truck had gone across the highway and through the

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ditch on the south side of the highway, and pointed him to where the truck had come to
rest.
Carillo also tried to tell Burl about the path that the truck had taken and where it
had come to rest, but Burl said he did not care and that Carillo would probably get fired.
Burl observed the path that the truck left through the field from the mill to the
highway. After being told what had happened, Burl did not go down to examine the
railroad tracks and did not ask either Ornelas or Carillo whether there had been any
damage to the tracks.
Instead, he yelled at Carillo that he did not care that the truck had crossed the
highway, criticized Ornelas for asking Carillo to help unclog the soak leg, pointed out to
both men that the truck had likely suffered several thousand dollars in damage, and told
Carillo that he would probably get fired or written up. Burl straightened the feed truck’s
bent muffler, and went home.
Later in the afternoon Cimarron assistant manager Jim Fairbank came to the mill.
Ornelas told him that the feed truck had rolled down the hill and across the highway,
and Fairbank laughed about it and made no effort to see for himself where it had rolled.
No one at Cimarron did any further investigation, or contacted the railroad, law
enforcement, or any other party to inform them of the truck roll-away incident.
Earlier the same morning, at about 7:26 a.m. (some three hours before the roll away
event) a BNSF train with lead locomotive BNSF 3917 passed over the location where the
Cimarron truck hit the track roadbed, and the locomotive video captured the track
conditions showing no track anomaly.
7

After the 7:26 BNSF train, the next train to pass over the area was the Amtrak 4
train, which is the subject of the present action. Led by locomotive AMTK 153, Amtrak 4
reached the impact location about 12:02 a.m. on March 14, 2016.
The rear portion of Amtrak Train 4 derailed immediately after passing over the
misalignment caused by the Cimarron truck. Investigators of the Federal Railroad
Administration (FRA) and National Transportation Safety Board (NTSB) determined that
the misalignment was within twenty-five feet of milepost 373.07.
Before the feed truck incident, there had never been a derailment at that location.
In the week before the derailment alone, more than 30 trains passed over the location of
the derailment without incident.
Immediately following the derailment, investigators of the Kansas Highway
Patrol, the FRA, and the NTSB reported to the scene to investigate. The NTSB examined:
a. the train event recorder data and the train on-board image recorders;
b. the track conditions at the derailment scene including the point of impact by the
feed truck, the point of derailment, the track conditions at the derailment scene,
and BNSF’s track maintenance, track inspections and track inspection records;
c. the mechanical condition of the Amtrak train including Amtrak locomotive 153;
d. records of the operational testing, training and certifications of the Amtrak train
crew, the Amtrak train crew’s work history and hours of service, the Amtrak train
crew’s operation of the train, and sight distance observations on March 17, 2016,
to a lighted lantern placed next to the rails (using a different locomotive);
e. a video study of the locomotive video from the Amtrak;
f. signal data and an inspection of signals at various signal locations along the train’s
route approaching the derailment; and
g. the Amtrak passenger cars involved in the derailment.
8

The Kansas Highway Patrol documented all of the post-accident track conditions,
conducted a detailed mapping, measurement and inspection of the path of travel of the
Cimarron feed truck and its impact to the railroad roadbed, and inspected the Cimarron
feed truck. The Highway Patrol’s test of the feed truck’s emergency brake found that the
brake had not been properly set, and with the truck parked on a downhill grade this
allowed the truck to roll away across Highway 50 and impact the railroad bed resulting
in displacement of the railroad ties and tracks.
When Ornelas arrived at work at the Cimarron feed lot on March 14, 2016, just
hours after the derailment had occurred, and the investigators were already on scene
investigating the derailment. Burl told Ornelas to leave the mill, to stay away and not be
seen. Burl instructed Ornelas to leave the scene knowing Ornelas had seen the truck roll
down the hill and across the highway to the area where the derailment occurred.
The track at the location of the derailment was classified by BNSF as “Class 3.” The
maximum authorized speed for a passenger train on the Class 3 track at the location
where the derailment occurred was 60 m.p.h. It is uncontroverted that the Amtrak train
was traveling 60 m.p.h. as it approached the derailment location.
The FRA has enacted numerous regulations establishing the standards with which
railroad tracks, ballast, track roadbed and related facilities must comply, generally
referred to as Track Safety Standards, which are contained in 49 C.F.R. Part 213. Part 213
also specifies the subject matters upon which railroads must create internal plans, rules

9

or standards pursuant to federal regulations in order to comply gwith regulatory
requirements.
For example, 49 C.F.R. § 213.118 requires railroads with track constructed of
continuous welded rail (CWR) to have in effect a plan containing written procedures for
the installation, adjustment, maintenance, and inspection of CWR. Although BNSF has
adopted and implemented a CWR Plan pursuant to the regulation, the track where the
March 14, 2016 Amtrak derailment occurred was not CWR track and, therefore, none of
BNSF’s CWR procedures were applicable to the track at the point where the derailment
occurred. As to the remaining BNSF internal rules, engineering instructions, and track
construction standards which have been cited by the Intervenors, including specifically
Standard Plan 1000, none of these internal rules, engineering instructions or track
construction standards identified above were adopted or created by BNSF pursuant to
any federal regulation, order of the FRA, the Secretary of Transportation, or Secretary of
Homeland Security.
The NTSB studied every askpect of the track at the derailment scene, including the
point of impact by the feed truck, the point of derailment, the track conditions, and
BNSF’s track maintenance, track inspections and track inspection record keeping. NTSB
investigators and local police agencies documented the continuous set of wheel marks
and path of the Cimarron truck to the track. The investigation included a finding that the

10

Cimarron truck crossed the highway continuing towards the railroad right-of-way and
struck the ballast shoulder of the track structure.3
The NTSB investigators photographed and measured the “as found” condition of
the track structure and lateral shift or misalignment and identified this as the point of
impact (POI) upon the track structure.
Investigators documented where they observed the first markings at MP 373.07 on
the inside gage face of the north rail approximately twenty-five feet after the POI and
determined this was the point of derailment (POD).
The investigators for the Track and Engineering Group for the NTSB investigation
included Richard A. Hipskind of the NTSB and Rick Bruce of the FRA. Hipskind, a track
and engineering specialist, prepared the Track and Engineering Chairman Group Factual
Report. The NTSB investigators took account of measurements and photographs of the
area of the single main track preceding the derailment footprint. The inspection included
taking measurements of the track conditions of the undisturbed track at the location of
the derailment for compliance with FRA Track Safety Standards. The track field notes
measurements were within FRA track safety standards for Class 3 track.

49 U.S.C. § 1154(b) provides that “[n]o part of a report of the Board, related to an accident or an
investigation of an accident may be admitted or used in a civil action for damages.” However, courts have
held that this prohibition applies to the ultimate conclusions of causation contained in a final NTSB report.
The statute does not preclude the admission of factual portions of a preliminary NTSB investigative report.
See, e.g., Starling v. Union Pac. R. Co., 203 F.R.D. 468, 485 (D. Kan. 2001). See also 49 C.F.R. § 835.2
(distinguishing between the Board’s ultimate probable cause determination and its “[f]actual accident
report” which contain[s] the investigator’s investigation of the accident. The Board does not object to, and
there is no a statutory bar to, admission in litigation of factual accident reports.”). These factual findings
from the on-scene investigation are admissible pursuant to Fed.R.Evid. 803(8)(B).
3

11

Investigators for the NTSB also requested, received and reviewed BNSF track
inspection records for the most recent three months preceding the derailment, and the
FRA examination of those records found that the records met the required frequency and
no record deficiencies were noted. Three days before the accident, an FRA-qualified
BNSF track inspector inspected the track in the area. The inspection record noted no
defects in the vicinity of the derailment—an area that includes the track preceding, and
up to, where the train derailed.
While 49 C.F.R. 213.233 only requires Class 3 tracks carrying passenger trains to
be inspected twice weekly, BNSF inspected the track at least four times a week.
The subject track was visually inspected by FRA-qualified BNSF track inspector
Bryce Gilliam five times in the week before the derailment— on March 7, 8, 9, 10, and 11,
2016.
In addition to the visual inspection, prior to the derailment, BNSF also performed
several automated track inspections of the tracks and track components at the site of the
derailment including geometry car testing, rail defect testing and rail joint testing.
On February 1, 2016, a BNSF Geometry car inspected the track at the location of
the derailment, and there were no exceptions noted on the approach to or in the vicinity
of the derailment. A geometry car inspection was also performed on January 12, 2016,
and there were no exceptions noted in that inspection at the location of the derailment.
Intervenors have not asserted a claim that the track at the location of the
derailment violated the specific FRA regulations for gauge (213.53), alignment (213.55) or
track surface (213.63 applicable to track runoff, profile and cross-level).
12

BNSF performed rail defect testing on the La Junta Subdivision January 27 to 29,
2016, which included the area throughout the derailment footprint. The rail defect testing
records did not show any uncorrected rail defects at the point of the derailment. The main
track at the location of the derailment was conventional jointed rail and not CWR, and,
therefore, joint testing was not required. Further, there was no joint or joint bar identified
by the NTSB at the point of derailment. Nevertheless, BNSF conducted joint testing in the
pertinent on March 3, 2016, which did not note any defect at the location of the
derailment.
Regulation 213.33, which governs drainage, provides: “Each drainage or other
water carrying facility under or immediately adjacent to the roadbed shall be maintained
and kept free of obstruction, to accommodate expected water flow for the area
concerned.”
It is uncontroverted that there was no measurable precipitation at the derailment
site for nearly 30 days prior to the derailment. Intervenors’ retained expert Alan Blackwell
did not look at weather records to determine how much it rained in this area during the
year of the derailment. It is uncontroverted there was no standing water at the derailment
location on the date of the derailment, and Blackwell testified that he does not know if
there was any standing water there during the months before the derailment. Blackwell
does not know whether the ballast at the location of derailment was adequately draining
water.
The Intervenors and Blackwell contend that a blocked drainage culvert under a
grade crossing contributed to the derailment. But the culvert is located over 1,000 feet to
13

the east of the derailment, the derailment did not happen at the grade crossing, and the
derailed train cars never reached the crossing or the culvert.
Moreover, Blackwell did not do any objective studies to measure the flow of water
through the alleged culvert that he claimed was blocked nor did he even attempt to
determine what the expected flow of water was for this area.
Intervenors also contend that the BNSF track violated 49 C.F.R. 213.103, which sets
standards for track ballast. As noted earlier, before the feed truck incident, no train had
ever derailed at this location, and, as constructed, the railroad roadbed and track
structure was properly performing the function for which it was intended — restraining
the track laterally, longitudinally, and vertically under dynamic loads imposed by
railroad rolling equipment.
In the week before the derailment alone, over 30 trains passed over the location of
the derailment without incident
The Intervenors also contend that the track ballast section, track roadbed and
embankment next to the tracks should have been maintained in a manner that would
have prevented or allowed it to withstand the lateral impact by the feed truck.4 However,
the Intervenors’ expert Blackwell is not aware of anything in any scholarly materials or

In their response to the motions for summary judgment, the Intervenors challenge the plaintiffs’
description of their failure to prevent claims as “design” claims, which would be subject to preemption.
Rather, they contend, they are maintenance claims. But this particular maintenance claim — that BNSF was
obliged to somehow fortify or “maintain” its tracks to withstand vehicle impacts merely because “vehicles
leaving the roadway at or near crossings” is foreseeable (Dkt. 413-1, ¶ 96) — is not meaningfully distinct
from how the railroad designs the crossing. At any rate, however characterized, as a factual matter, the
Intervenors fail to provide reliable evidence for the theory.
4

14

trade journals that says ballast should be made to withstand vehicle strikes. He does not
know of any railroad that puts such requirements in its standards.
Blackwell is familiar with the FRA’s Track Safety Standards Compliance Manual,
and he admits there is no portion of that Manual requiring a railroad shoulder be made
to prevent impacts from vehicles leaving the roadway.
In his deposition, Blackwell admitted that the Cimarron truck hit the BNSF track,
that the track was not misaligned before the truck hit it, but was misaligned afterwards.
However, in his report, Blackwell never mentions the Cimarron truck or its knocking the
BNSF track out of alignment. Blackwell has not calculated the amount of force that the
truck exerted on the track, does not know the impact force the truck exerted in the track
in any measurable, quantifiable unit, does not know how much force was necessary to
move the track out of alignment, conducted no analysis regarding how the truck
interacted with the track structure at the site of the derailment, and claims not to know,
has not done any analysis, and does not to have any opinion about whether this
derailment would have occurred if the Cimarron truck had not struck the BNSF tracks.
He admits that his analysis of the alleged causes of the derailment is at variance with the
findings of the FRA Investigation.
Intervenors assert that BNSF violated 49 C.F.R. 213.1.5 As discussed above,
Intervenors and their experts claim that the track ballast section, track roadbed and

5

It is uncontroverted that Amtrak did not own or maintain the tracks over which the train was traveling
when it derailed. It is also uncontroverted that Amtrak did not perform or direct nor was it responsible in

15

embankment next to the tracks should have been maintained in a manner that would
have prevented or allow it with withstand the lateral impact by the feed truck.
BNSF currently operates over 32,500 route miles of track in 28 states in the United
States. BNSF’s railway system is the result of nearly 400 different railroad lines that BNSF
merged with or acquired over the span of 160 years.
BNSF’s track in Gray County, Kansas, where the subject derailment occurred, was
formerly operated by the Atchison, Topeka, and Santa Fe Railway (ATSF), with which
BNSF merged in 1994. This includes BNSF’s La Junta subdivision, running from Los
Animas Junction, Colorado, to Ellinor, Kansas, more than 400 miles of main line track
alone, most or all of which, including the portion in Gray County, Kansas, was
constructed 100 years ago. In other words, the railroad roadbed and track structure at the
location where the derailment occurred has been in place for over 100 years.
BNSF’s Standard Plan 1000, referenced by Intervenors and their experts, is used as
guidance in the construction of its tracks, but it is not a hard and fast standard that BNSF
adheres to in all circumstances. This Standard Plan was not intended, nor is it used, to
require the re-engineering or reconstruction of all existing tracks on BNSF’s railroad
system, including those acquired through mergers or acquisitions. Nothing in BNSF’s
Engineering Instructions used by its maintenance department demands strict adherence

any way for BNSF’s inspection, repair and maintenance of the tracks over which the Amtrak train was
travelling when it derailed.

16

to all of the specific dimensions contained in the Standard Plan, and the suggestion that
the plan is a one-size-fits-all requirement is neither accurate nor practical.
Requiring BNSF to change the entire track structure, including ballast sections,
sub-ballast, subgrade, and excavations or embankments on all of its existing tracks into
compliance with the 1997 Standard Plan is neither feasible or warranted.
It is uncontroverted that, if the allegations made by Intervenors in this case as well
as the claims by Intervenors’ experts were accepted, BNSF would be forced to change the
track structure, road bed and surrounding embankment topography at not only the
location of the derailment but also arguably on the entire La Junta Subdivision to address
Intervenors claim that the roadbed and ballast section should have been constructed in a
manner that prevented a lateral strike from a vehicle.
BNSF is an interstate freight railroad and operates the mainline trackage on the La
Junta Subdivision 24 hours per day, 365 days per year. Further, Amtrak operates trains
on the tracks daily and 365 days per year.
This mainline track is the sole Amtrak route through the State of Kansas. Amtrak
operates two passenger trains per day over this area and, BNSF operates, on average, two
to five trains per day. Changing the track structure, road bed and surrounding
embankment topography to meet the various claims of the Intervenor’s proposed experts
would include but not be limited to the following:
a. Extensive studies, permitting and redesign work that would include land
surface/subsurface, topography, signals, signal circuits, fiberoptic cables, traffic
engineering, crossing/rail switches, movement of public utilities and other access
rights operated on easements on the railroad right-of-way and coordination with
17

the Kansas Department of Transportation for implications and impact on the
adjacent highway right-of-way.
b. Environmental impact studies would also have to be performed, which are costly
and time consuming.
c. If the above studies confirmed that reconstruction of the track structure, road bed
and surrounding embankment topography was feasible, possible and safe, the
project would include extensive construction work that would include not only
the railroad tracks at the location of the derailment but also arguably the entire La
Junta Subdivision.
d. Even if the work was confined to the 5 miles in either direction from the location
of the derailment, the work would require a lengthy period of closure of the BNSF
mainline track and disruption and transfer of traffic of not only BNSF freight trains
but disruption and transfer of traffic for Amtrak trains.
e. The project would require coordination with the Kansas Department of
Transportation to involve study of the impact on the adjacent highway and
possibly highway closures to accommodate the work. BNSF does not have
authority to close highways or alter the adjacent roadway right-of-way without
consultation with the Kansas Department of Transportation.
f. Closure of this stretch of track and disruption and transfer of train traffic would
significantly impact the operations of BNSF and Amtrak along the entire stretch
of the La Junta Subdivision and area beyond. Passenger traffic would have to be
re-routed, shipments of BNSF freight would have to be re-routed, and trains
would have to be rescheduled.
g. Delays in passenger and freight service would also disrupt the daily lives of many
shippers and consumers who depend upon the timely rail service and it would
impact the schedules of passengers on Amtrak trains. In addition to delays, safety
issues could arise in light of the rescheduling and re-routing.
Smply put, such work would be an enormous, burdensome and expensive
undertaking. It would shut down freight and passenger rail transportation on the railroad
line at issue for a considerable amount of time, resulting in train delay losses and other
logistical issues for both the railroad industry, its customers, and possibly the users of the
adjacent highway and roads impacted.
18

Turning next to the locomotive engineer, the FRA has enacted regulations
governing the selection, training and qualification of such engineers; a railroad’s
documentation of its programs for training, qualifying, and certifying locomotive
engineers; and FRA approval of such programs. These regulations require that railroads
adopt policies and procedures for the training, testing and evaluation of persons seeking
certification or re-certification as locomotive engineers.
Under 49 C.F.R. § 240.103, Amtrak must submit to the FRA Amtrak’s written
program for the certification and recertification of locomotive engineers, and a
description of how the program conforms to the specific requirements of Part 240.
Amtrak’s program for the certification and recertification of locomotive engineers is
considered approved by the FRA, unless the FRA notifies the railroad in writing that the
program does not conform to the criteria set forth in 49 C.F.R. Part 240.
Amtrak has developed a program for determining the qualifications of each
person that it permits or requires to operate a locomotive. Amtrak’s locomotive
engineer’s certification program, which included a detailed program developed by
Amtrak for the training, testing and evaluation of locomotive engineers, was submitted
to the Federal Railroad Administration on or about June 17, 2015.
The program requires annual monitoring and testing of the operational
performance of Amtrak’s locomotive engineers. Each calendar year, each engineer also
receives at least one unannounced efficiency test. Amtrak’s engineer certification and
training program was organized according to, and contained all the information required
by, appendix B to 49 CFR part 240.
19

The FRA did not notify Amtrak that its program did not conform with any of the
criteria set forth in 49 C.F.R. Part 240. Accordingly, the program is deemed approved by
the FRA pursuant to 49 C.F.R. §240.103(c). Although the FRA does have the authority and
discretion to notify a railroad when it determines there are problems with the railroad’s
training program, the FRA did not take any exception to Amtrak’s submission.
Federal regulations enacted by the FRA also set forth requirements for the
implementation, enforcement, and instruction/training of Amtrak’s operating rules and
practices. In accordance with 49 C.F.R. Parts 217 and Part 218, Amtrak maintained
operating rules and implemented programs to ensure that its employees were instructed
and tested periodically on the operating rules. Amtrak’s program included training,
instruction, operational testing and inspections to ensure compliance with its code of
operating rules.
As required by the FRA, Amtrak keeps records of its instruction and testing of its
engineers and conductors on the railroad’s operating rules. As of the date of the accident,
the Amtrak crew (Engineer Jennifer Montanez, Student Engineer Zachariah Blea,
Conductor Wilbert Benoit, and Assistant Conductor Nicholas Stoval) had successfully
completed all instruction and training required by Amtrak’s training program.
The monitoring, testing, physical examinations, supervision, and recertifications
that Montanez received during her employment as a locomotive engineer at Amtrak were
in compliance with Amtrak’s policy and program, which contained the criteria set forth
in 49 C.F.R. Part 240 and was approved by the FRA. As of March 14, 2016, Montanez was
recertified as a locomotive engineer, and was fully qualified to be a locomotive engineer.
20

She had received all of the continuing or recurring training for recertification required by
Amtrak’s program and policy. This included classroom training and testing, on the job
training, performance testing, and regular field efficiency tests by supervisors to monitor
her for ongoing rules compliance while she was actually operating a train.
Since becoming certified as a locomotive engineer, Montanez received ongoing
locomotive engineer training, evaluation, monitoring, testing, and supervision. During
her employment with Amtrak, after initially becoming certified as a locomotive engineer,
Ms. Montanez has been continuously recertified without interruption in accordance with
the requirements set forth in 49 C.F.R. Part 240. Thus, Montanez was an FRA-certified
engineer on March 14, 2016. Throughout her employment with Amtrak as a locomotive
engineer, Montanez received the requisite training and instruction regarding Amtrak’s
operating rules, practices, and policies that is required pursuant to Part 217 and Part 218.
As part of its investigation, the NTSB reviewed the operational testing and training
of the Amtrak train crew. The NTSB noted: “Operational testing – Title 49 CFR 217.9
contains specific requirements for the testing and observations of operating employees
while they perform their duties. Amtrak maintains an operational testing program to
monitor the performance and rules compliance of operating employees.”
The NTSB also set out the specific testing and training information concerning all
of the Amtrak crew members, including their hire date, medical, hearing and vision
exams, certification dates, certification expiration, skills performance rides, efficiency
testing and knowledge testing. The NTSB noted no exceptions to the testing and training

21

of the Amtrak train crew members or to Amtrak’s operational testing and training
program.
As part of its investigation of the derailment, the FRA also, along with the NTSB,
reviewed the operational testing and training of the Amtrak train crew. The FRA
indicated that all four employees had completed required safety and operating courses
with passing scores and that the Amtrak engineer was current with the requirement of
Title 49 CFR Part 240 – Engineer Certification. The FRA also concluded that the crew
members had received regular training, rules examinations and various safety training,
including emergency preparedness.
With respect to the last suggestion, the Intervenors’ expert, Colon Fulk, believes
that if the Amtrak engineer had simply “ridden out” the defect and applied no braking
at all, the train would have simply continued uneventfully on to Dodge City without
derailing. Additionally, Fulk and Intervenor expert James Loumiet have stated that,
assuming the train crew saw the misalignment at 800 feet or more away and applied the
emergency brakes, they could have avoided the derailment or lessened its effects.
However, as discussed more fully in the section of this opinion devoted to Intervenors’
experts, Fulk’s opinion as to this theory of “riding out” the misalignment is not reliable
and is excluded from the action.
On the two occasions that Mr. Fulk experienced a track misalignment while
operating a locomotive, he did not see the misalignments until his locomotive was less
than 400 feet away from the misalignment on the first occasion, and two seconds, or less

22

than 200 feet away, on the second occasion, even though both incidents occurred during
daylight hours in clear weather.
One incident involved a sun kink he encountered during the daylight hours; the
train did not derail; he did not apply emergency braking and he only saw the kink a
couple of seconds before he hit it. The other kink incident Fulk was involved in occurred
in Efland, North Carolina in the early ’80s involving a freight train going 45 miles per
hour. This also involved a kink that he encountered in daylight hours and only saw for 3
or 4 seconds before hitting it. This second train did not derail and he never applied
emergency braking.
Fulk has never experienced a situation where trains derailed after the application
of emergency brakes. Other than this case, Mr. Fulk has never investigated an accident
where a train derailed after application of emergency brakes.
Fulk acknowledges that Montanez’s application of emergency braking was not
addressed by the Amtrak Air Brake and Train Handling Rules, and he cannot cite any
rule by an American railroad recommending his theory of “riding out” such
misalignments. He has not recommended this theory to any railroad company, and is not
aware of any analysis ever done of when a train’s emergency brakes should or should
not be applied when a track misalignment is encountered. He has not analyzed the
frequency with which derailments have occurred due to track misalignments even
though that information is available through an FRA website.
Fulk is not aware of any other derailment that was caused by a track misalignment,
or a track misalignment and emergency braking. He has not seen any statistics suggesting
23

a correlation between derailments involving track misalignments where there was or was
not an emergency brake application.
Neither the NTSB nor the FRA has published any safety advisory addressing an
increased risk of derailment from a track misalignment if emergency braking is applied
or governing the use of any braking technique on a misalignment.
Fulk believes that compressive “buff” forces of the train as it crossed the
misalignment caused the derailment. However, he has not analyzed the “buff” or “draft”
(decompressive slack) forces that the Amtrak train would have experienced during this
derailment event, even though the forces can be calculated through computer simulations
that he has utilized in the past and agrees other experts in the industry utilize to analyze
events. He does not know how much buff and draft force would be necessary to cause a
derailment of a train given the dimensions of the misalignment that existed in this case.
Fulk does not know how slow the train would have had to be going when it
crossed the misalignment for the derailment to not have occurred. He has no training in
physics or human factors, and does not know what distance from the misalignment the
Amtrak locomotive engineer could have applied the emergency brake without risk of
derailment.
Fulk did not analyze how long it would take the buff forces of the Amtrak train to
dissipate once the brakes were applied.
Loumiet’s report does not contain any analysis of the contribution of emergency
braking to cause the derailment, and he did not perform any analysis of what amount of
longitudinal force was needed to cause a derailment in the situation that the Amtrak train
24

encountered or whether any such forces were actually present. He has acknowledged he
was unable to determine whether the derailment would have happened even in the
absence of train braking. He has agreed there are three potential mechanisms of
derailment—wheel climb, broken rail, and wide gage—but does not identify which
mechanism was at play with the subject derailment.
As noted, the Amtrak locomotive engineer at the time of the accident was Jennifer
Montanez. She testified that while operating as an engineer, she is watching her speed,
watching her throttle, watching crossings and looking out for cars and people. She is
looking for the lights and bells on the gates, signals, signal plates, bridges and generally
looking out her window for anything and everything.
Montanez testified she put the train in emergency as soon as she saw the
misalignment, and she only saw the defect right before she placed the train into
emergency.
At the time of the underlying derailment, Zach Blea was a locomotive engineer
trainee and was in the cab of the locomotive with engineer Montanez. Blea remembers
looking out the window, seeing the defect in the rail, and bracing for impact. He also
recalled seeing the defect about two seconds before the Amtrak train went over it.
As part of its investigation of the derailment, the NTSB, using an exemplar
locomotive, performed a visibility study at night and concluded that an object placed
near the track was visible to the train crew only 381 and 403 feet away, even though the
crew was traveling at only 25 m.p.h. and was told in advance to anticipate the object near
the track.
25

Video from the locomotive involved in the derailment shows that misalignment
appears out of the darkness for approximately two seconds before the lead locomotive
passes over it, consistent with the NTSB’s assessment in its Event and On-Board Image
Recorders Group Chairman’s Factual Report.
Intervenors attempt to discount the results of this investigation by stressing
various aspects of the test, such as the fact that it “did not involve seeing the defect itself,
but an object placed in the location of the defect.” (Dkt. 413-1, ¶ 197). But all of the
distinctions between the test and the accident itself (the engineer was warned to look for
something unusual, the object used was a lantern, and the train was travelling at 25 m.p.h.
rather than 60 m.p.h.) all tend to strongly exaggerate the distance, and hence the warning
time to Amtrak’s engineer.
Intervenors’ expert Loumiet has hypothesized what would have happened if the
crew would have applied the brakes after seeing the misalignment at 800 or 1,000 feet
away, but acknowledges he has no opinion that the crew actually had the ability to see
the misalignment at such distances on the date in question. Fulk has opined that, by the
time the crew was able to see the misalignment, braking was no longer the proper
response. He also testified that in his opinion, the crew should not have placed the train
into emergency if they first saw the misalignment at 400 feet and at 500 feet, stating “it’s
iffy.”

26

Findings of Fact – Headlight Claims
The lead locomotive of the Amtrak train involved in the accident (AMTK153) was
a GE model P42DC locomotive, equipped with a dual-lamp headlight. In its dual-lamp
headlights, Amtrak sources and installs only General Electric PAR-56 200-watt 30V bulbs.
On the date of the derailment, the lead locomotive of AMT153 was equipped with two of
these bulbs in its headlight assembly.
To give its inspectors guidance on how to inspect headlights to determine
compliance with 49 CFR 229.125, the FRA publishes a “Motive Power and Equipment
Compliance Manual.” The manual provides that if a locomotive has a light arrangement
with two sealed beam headlights the inspector must ascertain whether they are 200-watt,
30-volt lamps.
On March 14, 2016, the date of the derailment, the FRA conducted an inspection
of AMTK 153 and did not note any exception with the locomotive headlights.
Two days before the accident, on March 12, 2016, maintenance personnel in Los
Angeles performed a “15-day Inspection” of AMKT153. This inspection, which included
inspection and testing of locomotive headlights and auxiliary lights, noted no issues.
Jennifer Montanez. the train’s engineer, went on duty and boarded the train in La
Junta, Colorado, on the evening of March 13, 2016. It is uncontroverted that Montanez
inspected the lead locomotive before leaving the station, and verified that the
locomotive’s headlights and auxiliary (or “ditch”) lights were working.
As the train approached the point of derailment, the locomotive headlight was on
and the switch was set to “bright.”
27

After the derailment and after the train stopped, Montanez remained in the
locomotive for an extended period of time as railroad personnel, emergency responders
and law enforcement reported to the scene. Because these workers were outside the train,
including some standing in front of the locomotive, Montanez changed the locomotive
headlight switch from “bright” to “dim.”
On March 16, 2016, members of the NTSB mechanical group investigating the
derailment performed a pre-departure inspection of the Amtrak train involved in the
derailment, including AMTK153, and no exception with the function of the locomotive
headlights were noted. The mechanical group reviewed locomotive daily inspection
records and took no exceptions to the documentation received or to the maintenance
history of the equipment.
An on-board camera recorded video of the train’s approach to the derailment
location. The relevant portion of the video begins thirty seconds before the derailment
and continues through the time the train came to a complete stop after the derailment.
In the video, signs adjacent to the tracks appear, reflecting the light they receive
from the locomotive’s headlights.6 Examination of the video confirms that the headlight
was illuminating vertical objects more than 800 feet ahead of the locomotive. These
objects include a sign about ten feet to the right of the track centerline (at about 1,000 feet
ahead), a whistle post next to the track anomaly and about six to seven feet to the right

6

Intervenor’s expert Colin Fulk has testified that, if a locomotive’s headlights reflect light off a vertical
reflective device located outside but adjacent to tracks from 800 feet away, the headlight is properly aimed .

28

side of the tracks (at the same distance), and a mile marker next to the to the track on its
left side (at about 1,500 feet).
It is uncontroverted that an object traveling at 1 m.p.h. travels 1.4667 feet per
second.
Intervenors’ expert Colon Fulk stated, “It is my opinion … that the train crew
should have been able to see the misalignment or kink for at least 800 feet in advance of
the misalignment.”

Findings of Fact – Joint Venture
In the Pretrial Order, Cimarron alleges:
Amtrak and BNSF operated the subject railroad operation as a joint venture.
As such, for comparative fault purposes, Amtrak and BNSF should be
considered a single entity, and the sum of any comparative fault for this
incident by Amtrak should be combined with that BNSF so that if the total
of Amtrak and BNSF’s fault exceeds forty-nine percent bars, they are barred
from recovery against Defendant Cimarron.
(Dkt. 461, at 23).
Amtrak and BNSF are distinct corporations. Amtrak provides passenger rail
service by using track owned by other railroads, including BNSF. BNSF owns railroad
tracks in a number of states, including the State of Kansas.
Amtrak, not BNSF, owned and operated the train involved in the derailment.
BNSF, not Amtrak, owned and maintained the tracks where the derailment occurred.
While Amtrak compensates privately-owned railroads for the incremental cost of
Amtrak operations on their tracks, the private railroads are solely responsible for the
29

inspection and maintenance of the railroad roadbed and tracks and for coordinating the
flow of traffic over their railroad tracks.
While BNSF provides dispatching services for Amtrak trains using its tracks, it
does not operate those trains, provide train crews, or supervise Amtrak’s crews. BNSF
was responsible for inspection, repair and maintenance of the tracks over which the
Amtrak train derailed March 14, 2016.
Amtrak did not perform or direct the inspection, repair and maintenance of
BNSF’s tracks. All the personnel of BNSF performing such track work are subject to the
exclusive direction and supervision of BNSF. BNSF did not supervise of the the Amtrak
train crew.
Amtrak does not share with BNSF ownership of the tracks over which the train
was running, and Amtrak has no role in fixing of any BNSF salaries and BNSF has no role
in fixing of any Amtrak salaries. BNSF does not share in or have any voice in determining
the division of Amtrak’s net earnings, profits or losses.
While the agreement between Amtrak and BNSF provided for Amtrak’s use of
BNSF’s rail line, neither party intended this as an agreement to share profits and losses
with the other company, or for the profits and losses of either BNSF or Amtrak, or as an
agreement to jointly own any passenger trains or rail lines.

30

Motions to Strike
Following the Intervenors’ Responses (Dkt. 411, 412) to their summary judgment
motions, the railroad plaintiffs moved to strike certain portions of these pleadings which
were premised on new opinions offered by expert witnesses retained by the Intervenors.
The plaintiffs condemn the opinions as last-minute attempts to salvage the passengers’
claims, and argue the opinions should be excluded because (1) they are new or novel
opinions not previously revealed in the experts’ reports or depositions, and thus barred
by Fed.R.Civ.Pr. 26(e) and 37; (2) they are unreliable conclusions outside the expertise of
the witness, and thus barred by Fed.R.Evid. 702; (3) or both.
In addition, following the entry of the Pretrial Order (Dkt. 461) which added new
claims for the allegedly defective locomotive headlight, Amtrak moved for summary
judgment on these claims and, after Cimarron and the Intervenors opposed this motion,
filed a reply coupled with separate motions to strike portions of the expert statements
cited in the responses.
Under Rule 26(e), a party may submit a supplemental or rebuttal expert report if
the expert has been presented with new information, but the rule precludes such reports
submitted in the absence of such information. Spirit Aerosystems, Inc. v. SPS Technologies,
LLC, Case No. 9-CV-114-EFM-KGG, 2013 WL 6196314, *6 (D.Kan. Nov. 27, 2013). Thus,
“a supplemental expert report that states additional opinions or rationales or seeks to
‘strengthen’ or ‘deepen’ opinions expressed in the original expert report exceeds the
bounds of permissible supplementation and is subject to exclusion under Rule 37(c).”
Paliwoda v. Showman, No. 12-2740-KGS, 2014 WL 3925508 at *3 (quoting In re Cessna 208
31

Series Aircraft Prods. Liab. Litig., Case No. 05–md–1721, 2008 WL 4937651, at *2 (D.Kan.
Nov. 17, 2008)) (emphasis added). The undersigned has adopted rules which specifically
provide that “absent strict compliance with Rule 26(a)(2), the witness’s testimony will be
excluded pursuant to Rule 26(e)(1).” Guidelines for Parties and Counsel on Pretrial and
Trial Matters, Revised Aug. 2011 (J. Thomas Marten, United States District Judge).
Expert opinions must not only be disclosed through Rule 26(a)(2), they must also
be reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993) (expert
testimony must have “a reliable basis in the knowledge and experience of [the relevant]
discipline”); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). An expert’s opinion
may be admitted under Rule 702 if is helpful to the jury, which requires the court to
determine if there is “a valid scientific connection to the pertinent inquiry.” Daubert, 509
U.S. at 592. “Although many factors may bear on whether expert testimony is based on
sound methods and principles, the Daubert Court offered five non-exclusive
considerations: whether the theory or technique has (1) been or can be tested, (2) been
peer-reviewed, (3) a known or potential error rate, (4) standards controlling the
technique's operation, and (5) been generally accepted by the scientific community.”
Etherton v. Owners Ins. Co., 829 F.3d 1209, 1217 (10th Cir. 2016) (citing 509 U.S. 593-94). As
explained below, the court finds that in most respects the expert opinions cited in the
Intervenors’ Responses are either novel and undisclosed opinions not in compliance with
Rule 26, or opinions which have not been demonstrated to be reliable under Rule 702,
and accordingly grants the plaintiffs’ motions. (Dkt. 432, 436, 438).

32

Fulk
Colon Fulk worked for Amtrak as a locomotive engineer for 11 years. Before that,
he worked in the operating department of Norfolk Southern Railway for 22 years, serving
as brakeman, conductor, fireman, road foreman, and locomotive engineer. Fulk provided
his report in the present action on April 2, 2018.
Fulk currently works for a company called Railex. He is Railex’s only employee,
and 90-95% of his work involves consulting and providing testimony for parties to actual
or potential litigation. All of this work is performed on behalf of persons who are adverse
to railroads.
In his recent affidavit, Fulk states the derailment occurred, or was made worse,
because (1) the train’s headlight was improperly set to dim rather than bright, (2) the crew
failed to see the misalignment at 800 feet away or more and then used emergency breking,
and (3) the engineer failed to “rid[e] out” the misalignment and avoid emergency
braking.
Fulk has not identified any railroad rules or recommendations from the FRA or
NTSB suggesting that locomotive engineers not apply emergency brakes when
encountering a kink or misalignment of track.
Fulk himself has only encountered kinked or misaligned track twice. Both
incidents occurred in daylight and clear weather. In both incidents, Fulk did not see the
misalignments until his locomotive was less than 400 feet away, and in one, less than 200
feet away from the misalignment. Once incident occurred in the early 1980s when Fulk
was operating a freight train at 45 miles per hour. He saw the misalignment three to four
33

seconds before hitting it. In the other incident, Fulk saw the misalignment only a couple
of seconds before he hit it. In both incidents, Fulk did not apply emergency braking and
the train did not derail. In his deposition Fulk acknowledged he does not now know how
big either misalignment was.
Fulk has never experienced a situation where trains derailed after the application
of emergency brakes. Other than this case, Fulk has never investigated an accident where
a train derailed after application of emergency brakes.
Fulk is not aware of any analysis ever done regarding when a train’s emergency
brakes should or should not be applied when a track misalignment is encountered. He
did not analyze the frequency with which derailments have occurred due to track
misalignments even though that information is available through an FRA website. He is
not aware of any other derailment that was caused by a track misalignment, or a track
misalignment and emergency braking. He has not seen any statistics suggesting a
correlation between derailments involving track misalignments where there was or was
not an emergency brake application.
The FRA website identifies three Amtrak derailments that resulted from track
kinks between 1994 and 2005. Fulk is unaware if any of these incidents that involved the
application of emergency brakes.
Fulk has not seen anything from the FRA or NTSB suggesting that applying
emergency braking on a track kink increases the likelihood of a derailment. He has
likewise seen no reports or data from any third-party source suggesting such a
correlation.
34

Fulk has never talked to anyone who applied emergency brakes when
encountering a track kink after which the train then derailed. He does not know whether
there are some misalignments large enough to derail a train even in the absence of
emergency braking.
Fulk does not know at what speed a train passing over a nine-inch misalignment
would derail. He is unaware of any data from prior derailments that he could use in
analyzing and drawing conclusions from the subject derailment.
According to Fulk, the train derailed because of the buff forces of the train braking
as it crossed the misalignment.7 Fulk has not tried to quantify the buff or draft forces that
the Amtrak train would have experienced during this derailment event, even though the
forces can be calculated through computer simulations that he has utilized in the past
and agrees other experts in the industry utilize to analyze events
Passenger and freight trains typically are subject to different slack forces. A freight
train could have 50 or more feet of slack. Passenger trains have very little slack, and use
tightlock couplers that are designed to reduce the amount of slack. They also have
different draft gear with less slack than freight cars.
Fulk testified that there are many differences between freight trains and passenger
trains. Freight trains consist of 100 or more cars, while a passenger train typically has 15

The operation of trains results in two types of slack force, which arises from the different speed of adjacent
cars. “Buff” force occurs created when the locomotive brakes and the cars behind it begin running in toward
it and the slack compresses. “Draft” force occurs when the locomotive accelerates, and the slack between
cars runs out and puts couplers in a state of tension.
7

35

or fewer. Freight locomotives and cars are also significantly heavier than passenger
locomotives and cars.
Fulk does not know how much buff and draft force would be necessary to cause a
derailment of a train given the dimensions of the misalignment that existed in this case.
He does not know how slowly the Amtrak train would have had to be traveling in order
to avoid derailment when it encountered the misalignment.
Fulk has no training in physics or human factors.
Fulk does not know what distance from the misalignment the Amtrak locomotive
engineer could have applied the emergency brake without risk of derailment.
As a manager at Norfolk Southern, Fulk had the ability to suggest changes to
railroad rules if he identified a subject that needed to be addressed. Fulk states that he
was trained about how to handle a train when it encountered a defect, but he has also
admitted that Norfolk Southern had no rule governing the operation of trains over track
kinks, and he never suggested that Norfolk Southern adopt such a rule.
Fulk is unaware of any railroad in the United States that has adopted a rule
requiring the action that he claims Montanez, the Amtrak locomotive engineer, should
have taken.
His report cites no rule from any railroad that discusses train handling on a track
kink. He has seen no advisory from the FRA or NTSB encouraging railroads to adopt a
rule of the sort he now wants to impose on Montanez, identified any training materials
from any railroad that tells engineers how to deal with track kinks, has not seen and does
not know the contents of the Amtrak’s engineer certification and training plan, and does
36

recall anything about the actual training materials that Ms. Montanez did receive as part
of her training by Amtrak.
Fulk believes that Montanez’s training was deficient because Amtrak did not train
her on things that he thinks should have been the subject of her training.
Fulk admits that he has not seen any training materials from any other railroad
that contain the subject matter he claims Amtrak should have provided to Montanez. He
has not seen any safety advisory from the FRA or NTSB concerning the technique for
braking when encountering a track kink.
According to Fulk’s deposition, the train would not have derailed if the crew had
seen the kink earlier, at 800 feet away or more, and immediately applied the emergency
brakes. However, Fulk was asked in the deposition, “How slow would the train have had
to have been going for it not to have derailed?” Fulk responded:
I don't know. I don't know. That's an opinion that -- for the fact we did get
two locomotives and two cars over it before it derailed. And I can't put a -and I'd be very naive to try to put a specific speed with it to say that, but
that's my opinion.
Fulk testified that if the engineer had done nothing at all, as opposed to applying the
emergency brakes, the train would not have derailed. He believes that applying the
brakes when the train was 400 feet away would have been the wrong course of action.
Fulk was then asked, “So you don't have any data that you could point to that
says, there's actually some data out there that supports what I think?” Fulk responded,
“No.· Not in relation to a track kink.” When asked again if the train would have derailed

37

if the crew had applied the emergency brakes at 400 feet, Fulk said, “I don’t know the
answer. I don’t know. I suspect they would have.”
The hypothetical was then changed to 500 feet, and Fulk’s only additional
comment was, “I think -- I think that is getting in the range of where it is -- it's iffy.”
Asked about 600 feet, Fulk said, “I don’t know.”
The following exchange then occurred:
[Q.] So we've been kind of going through a whole lot of different
scenarios as, okay, at 400 feet what should you do, at 500 feet what
should you do, at 600 feet what should you do. These are all things that
you would have to take into account a whole lot of variables, and you're
not even sure exactly what the right answer is?
[A.] I am not. You are correct. I don't know, and I don't know anybody
else that knows.
Fulk is unaware of any data or studies supporting his opinions as to what actions
the train crew should have taken or what would have resulted.
The railroad plaintiffs attack the opinions offered by Fulk in his affidavit on two
grounds. First, they argue the opinions should be excluded under Rule 37(c) because they
are new opinions not presented in his earlier report. They contend that it is fundamentally
unfair to present these opinions for the first time after the close of discovery and the filing
of dispositive motions. Second, the plaintiffs contend that Fulk’s testimony should be
excluded under Rule 702 and the standards for the admissibility of expert opinions
recognized in Daubert and Kumho Tire.
The court finds that Fulk’s opinion testimony that operating the headlight on dim
would have been contrary to appropriate operating procedure is not a new opinion. The
38

plaintiffs and intervenors do not appear to actually disagree that Fulk would not be
testifying as an expert to the fact that train headlight was on dim at the time of the
accident. See Resp. at 28 (not post-accident photos showing the light switch on dim,
which “is a fact” and that “Fulk’s opinion is not about whether the headlight was on dim
or bright”). Rather the dispute appears to be whether Fulk’s affidavit opinion that
running the train with the headlight on dim would have been careless. This opinion is
implicit in Fulk’s earlier report. Although his report “assume[s]” that headlight was
actually on bright at the time of the accident, but was still inadequate because it was
defective or misaligned, he also adds that “[i]f [the headlight was] not [on bright], it
would have been operational error to have been running with the headlight on dim.”
Accordingly, the opinion as to the effect of running the headlight on dim is not
new or novel. Ultimately, the court need not resolve any secondary issue with respect to
the reliability of such opinion. The issue of whether the headlight was on dim or bright
was explicitly removed during the pretrial conference conducted August 18, 2018.
Similarly, the court finds that the affidavit’s statement that “the train crew should
have been able to see the misalignment or kink for at least 800 feet in advance of the
misalignment” is not excludable under Rule 37(c). The plaintiffs contend that his
argument is a novelty, because in his report Fulk had stated that the failure to see the
misalignment at 800 feet because the headlight was defective or misaligned, but in the
affidavit this conclusion is “unqualified and unequivocal.” (Dkt. 458, at 8). The court finds
no substantial surprise or prejudice which would justify striking the opinion under Rule
37. In his report, Fulk indicated his belief the crew could have seen the misalignment at
39

800 feet, and the plaintiffs could and did inquire as to the grounds for his opinion at his
deposition. The affidavit opinion is not so radically different that exclusion is justified
pursuant to Rule 37.
The court does find that the opinion that the train should have been abiding by a
25 mile per hour “slow track” order, is a new, previously undisclosed opinion which
should be excluded under Rule 37(c). That opinion cannot be fairly traced in Fulk’s earlier
report.
In his affidavit, Fulk states that there would have been no derailment “[i]f the
Amtrak train was abiding by the 25 mph disturbed track slow order.” The earlier report,
however, only references a separate slow track order well away from the scene of the
derailment, and Fulk acknowledged in his deposition that for the actual location of the
accident “there was no slow track order in effect” and that consequently the maximum
authorized speed in the area was 60 miles per hour, not 25. To the extent that Fulk now
opines that a slow track order was in effect for the area of the accident, it his contrary to
his earlier statements and is excluded.
The court also finds that Fulk’s new assertions regarding the content of Amtrak’s
training programs should be excluded from the case. Fulk now opines that properlytrained engineers should be able to detect track misalignments, and makes suggestions
regarding proper field-training for engineers. (Resp. ¶¶ 204-207, 209-12, 225, 249). But
Fulk in his deposition expressly testified that he has not seen Amtrak’s training program,
that he does not know what the training includes, and does not know if the training
Montanez received complies with FRA guidelines. Fulk did not previously criticize the
40

content of Amtrak’s training program, and may not do so for the first time in opposition
to the railroad’s summary judgment motion. The evidence supplied by the plaintiffs
supports the conclusion that Montanez’s training meets the standards for the FRA and
those set forth by 49 C.F.R. Part 240.
The court next finds that much of Fulk’s testimony has not been shown to be
reliable, and accordingly should be excluded. Responding to plaintiffs’ Daubert
arguments, Intervenors simply (and quite repeatedly) stress the length of Fulk’s
experience. (Dkt. 446, at 22-23). They also emphasize that Fulk has indicated he has relied
on Loumiet (id. at 24), and is buttressed by the testimony of other experts (id. at 26). But
as to important elements of Fulk’s proffered opinions, the intervenors have completely
failed to justify Fulk’s own expert testimony. Simply repeating Loumiet’s conclusions
provides no assistance to the jury. And intervenors do not show how Fulk’s years of
general locomotive experience renders reliable particular opinions advanced here.
Fulk has opined that the crew erred when it tried to brake while over the
misalignment. But, as noted earlier, Fulk has very little actual experience with
misalignments. In all the many years of those experience, he has encountered them twice.
Both occasions were in daylight, and on both occasions, he perceived the misalignments
much closer (400 feet or less) than the distance (800 feet) he now says that the train crew
should have seen the present misalignment in the middle of the night. On both occasions,
Fulk did not apply brakes, and no derailment occurred. But he does not remember how
big those misalignments were, and more importantly, he has no experience with the

41

converse: any instance in which braking while over a misalignment caused a derailment
which otherwise would not have occurred.
Here, the Intervenors have completely failed to show anything in Fulk’s
experience or training which would support the opinion that braking over the
misalignment caused the derailment. Fulk has not identified any railroad rules or
recommendations from the FRA or NTSB that require such an action. Other than this
accident, Fulk has never investigated an accident where a train derailed after application
of the emergency brakes. Fulk is not aware of any analysis about when a train’s
emergency brakes should or should not be applied when a track misalignment is
encountered, has not analyzed the frequency with which derailments have occurred due
to misalignment, and does not know of any other derailment that was caused by a track
misalignment and emergency braking.
The Intervenors are correct to note that experience alone can provide sufficient
foundation for expert testimony. See In re Motor Fuel Temperature Sales Practices Litig., No.
MDL No. 1840, 2012 U.S. Dist. LEXIS 13881, at *50 (D. Kan. Feb. 6, 2012). But a proffer of
such testimony must show how the experience supports the opinions included. Here, the
record shows that Fulk’s actual experience with misalignments in general is almost
nonexistent. As to a misalignment encountered at night, it is nonexistent.
Fulk’s contention in his report that the train “would not have derailed had
emergency braking not been applied,” and in his affidavit that the braking “contributed
to the derailment” are conclusions which are not supported by anything in Fulk’s

42

background. Similarly, the Intervenors’ attempt to save Fulk’s conclusions by citing
Loumiet’s testimony or the conclusions of other experts, is insufficient.
First, Fulk himself does not do so. In his report, deposition, and affidavit, Fulk
does not ground his “ride it out” causation theory on Loumiet. Indeed, Fulk only states
in his report that he read Loumiet’s report but does not otherwise discuss his findings,
and does not mention Loumiet at all in the course of his report. Second, Loumiet himself
does not testify that braking caused the derailment, stating only that using the brakes
“while on the track misalignment applied longitudinal forces to the rails and wheels that
would not have otherwise been present.” The court will address Loumiet’s opinion
below, but for present purposes it is sufficient to note that this is far short of establishing
that the braking caused the accident, and, in any event, provides no basis for Fulk
testifying as to the issue.
Fulk has also provided opinions as to the distances at which the crew should have
seen the misalignment, and, once seen, the course of action they should have taken. The
Intervenors respond to plaintiffs’ motion by citing Fulk’s training and by noting the
results of Fulk’s experiment in railway nighttime visibility. But the argument which
generically cites Fulk’s “training” carries little weight, as Fulk himself never specifically
references that training as a basis for his opinions, which instead appear to be his own
unsupported estimates of visibility. As noted earlier, in his deposition Fulk was
questioned about the basis for his opinions that the crew should have acted in certain
ways based upon when the say the misalignment — whether at 400, 500, or 600 feet —

43

and agreed that he was not sure what the right answer was. “I don’t know, and I don’t
know anybody else that knows.”
The Intervenors have failed to show a reliable basis for Fulk’s statement that the
crew could have seen this particular misalignment at 800 feet. As noted earlier, despite
his years of experience, Fulk has never seen a track misalignment at night, and thus has
no experience from which to opine how far such misalignments might be perceived, and
none at all for saying that a misalignment of this particular magnitude should show have
bene seen at 800 feet.
Additionally, Fulk’s experiment referenced in his declaration—which involved
placing reflectors at various distances along a railway and determining how far they were
visible—provides no substantial reason for crediting that his opinions as to the adequacy
of the Amtrak headlight. The experiment involved a different locomotive type, using an
unknown type of bulb. Further, as discussed elsewhere in the present Order, reflectors
are designed for visibility, capturing and returning light towards the person viewing the
reflector. Thus, Fulk’s reflector experiment does nothing to show the distance at which
the ground-level track misalignment was actually visible to the crew on the night of the
accident. The court finds that the plaintiff’s joint Motion to Strike (Dkt. 423) should be
granted.
Amtrak separately targets (Dkt. 482) Fulk’s opinions cited in support of Cimarron
and the Intervenor’s defense of their headlight claims. Fulk states that the headlight failed
to meet the standards set forth by 42 C.F.R. § 229.125 because it was improperly aimed
and because it failed to illuminate the track in front of the train. The court finds that Fulk’s
44

conclusions, which are largely premised on his review of the locomotive video, are not
reliable under the standards for expert opinions set forth separately in this Order.
Fulk acknowledges the video is “poor quality.” He ultimately concludes in his
report, however, that “[t]he locomotive headlight was not aimed in the proper direction
as required by federal regulations, i.e., CFR 229.125n” (Dkt. 474-1, 10). Fulk offers this
conclusion with no explanation or discussion.
Notwithstanding his long experience as a locomotive engineer, the proponents of
his testimony have failed to show that Fulk has any experience at all in attempting to
forensically reconstruct the facts of a nighttime event based on electronic image captures.
Fulk’s review of the video and his proffered subjective belief it shows the light was
inadequate or aligned to one side is not admissible because there is no indication that
Fulk has experience in video analysis. Such subjective impressions do not establish a
violation of § 229.125. As noted below, the FRA has explicitly eschewed as vague the
requirement that the headlight must allow the train crew to “see” a person at 800 yards,
replacing it with objective criteria for brightness and aiming.
Fulk has otherwise admitted he does not know, on the night of the accident, how
much actual light the Amtrak locomotive placed 800 feet ahead. Fulk acknowledged that
he has not seen any source (from the FRA, NTSB, or recognized journal) indicating that
his method of estimating visibility is consistent with federal regulations.
This lack of reliability is further undercut by Fulk’s own statements. As noted
earlier, when attempting to blame the train crew for reacting too slowly or for having the
headlight on dim, Fulk opined that the crew “should have been able to see the
45

misalignment or kink for at least 800 feet." And he agreed that the reflection from signs
well beyond 800 feet indicated that “the light is bouncing off those reflectors and coming
back means that the light’s properly aimed.”
The same result is true for Fulk’s claim that the “AIM” of the headlight was
impaired because of prior damage to the locomotive. Fulk bases this conclusion on
photographs showing some damage to the front area of the locomotive. But the
photographs do not reveal any damage to areas of the locomotive near the headlights.
Fulk was asked if he “kn[e]w, in fact if any of the damage actually altered the aiming or
orientation of the lights?” and he responded: “I don’t know that for a fact, no.”

Loumiet
Loumiet, Intervenors’ accident reconstruction expert, has a Bachelor of Science
degree in Mechanical Engineering. He has some 30 years of professional experience, and
has specialized in the reconstruction of train and motor vehicle accidents, including
expertise in the calculation of train stopping distances. Loumiet has made numerous
technical presentations and authored numerous technical publications in the areas of
accident reconstruction and highway safety, including the areas of train operations and
dynamics. He is the principal author of the book, Train Accident Reconstruction and FELA
and Railroad Litigation.

46

Plaintiffs challenge three opinions offered by Loumiet in the affidavit attached to
the intervenors’ summary response: (1) an opinion that the misalignment was visible to
the train crew at a distance of 400 feet, (2) that braking while over the misalignment
created lateral braking forces which caused the misalignment, and (3) that better ballast
or maintenance of the area would have prevented the runaway Cimarron truck from ever
striking the track. Plaintiffs argue that these opinions are new opinions, presented
improperly for the first time in opposition to summary judgment, and that the opinions
are unreliable and inadmissible under Rule 702.
Intervenors identified their liability experts, including Loumiet, on April 2, 2018,
after obtaining agreement from the plaintiffs to a brief extension of the March 30, 2018
deadline. The deadline for the completion of all discovery testimony was May 7, 2018.
The intervenors have never sought to designate any rebuttal expert. Plaintiffs were first
presented with Loumiet’s declaration, which is the subject of the present motion to strike,
when it was signed on June 28 and filed the same day with the intervenors’ summary
judgment response.
The plaintiffs argue that the declaration’s direct opinion that the train crew could
have seen the misalignment when the train came out of the curve ahead of the scene is a
novel opinion not previously presented in the case. They contend that the previous report
focused on the calculations of various stopping distances after assuming the train crew
detected the misalignment.
The Intervenors contend that this misstates the record, as Loumiet did say in his
November 13, 2017 report that the crew could see the misalignment at 400 feet. Actually,
47

a review of the report indicates that its focus was on braking distances, with Loumiet
simply stating that at one point in the report: “Given that the train crew had 400 feet of
visibility to the track misalignment, at 25 mph they would have had ample time and
distance to see the misalignment and stop the train before reaching it.”
Again, the entire context of Loumiet’s report is a discussion of stopping distances.
Loumiet simply indicated that “[g]iven … 400 feet of visibility” the train could have
stopped reflects an assumption visibility, based apparently on NTSB estimates. That
Loumiet was not himself offering an opinion as to how far the crew could have seen the
misalignment was confirmed in his deposition:
Q You're not suggesting that they actually saw or could have seen this
defect at that distance [800 feet]; are you?
A. I'm not opining on that; that's correct.
***
Q. This video from the locomotive is not an accurate depiction of what the
train crew could see?
A. Of that aspect, I would agree. But, again, I'll look to others to speak to
that.
***
Q. Have you made any determination as to how far away the crew would
have been capable of seeing the track defect?
A. No.
Q. No calculations either?
A. Correct.
Q. That's something you'll defer to others on?
48

A. Yes.
In addition, Loumiet does not ground the new opinion on any testimony or other
data.
The Intervenors contend that “longitudinal braking forces” applied by the train
crew adversely “affected the track” and contributed to the derailment, citing Loumiet’s
report. Plaintiffs correctly point out that Loumiet said nothing about such forces in his
report. In their response to the motion to strike, the Intervenors argue that Loumiet’s
discussion of lateral forces is not new, as in his report he observed that braking creates
“longitudinal forces to the rails and wheels that would not have otherwise been present.”
But such generalized testimony as the effect of braking is different from the new
suggestion in response to the summary judgment motions that the application of
emergency breaking caused or contributed to the derailment. In his deposition, Loumiet
acknowledge that he had not done any calculations to show that not braking would have
prevented the derailment.
The declaration’s discussion of longitudinal effects of braking as a contributing
factor to the derailment is novel opinion testimony, and properly excluded. Further, the
intervenors have failed to show any underlying calculations or data which would render
such an opinion about the causal effects of longitudinal forces reliable under Rule 702.
Plaintiffs also challenge opinions included in Loumiet’s declaration to the extent
it: (1) describes the extent of the misalignment as being 7 to10 inches, (2) states an opinion

49

as to the speed at which the Cimarron truck struck the track, (3) relies on an article 8 by
Dr. Allan Zarembski, as to the effects of additional ballast in the area, and (4) that with
“better quality … and more ballast” in the area the truck would not have struck the track
with sufficient force to cause a misalignment. The intervenors contend that (1) the
estimate of the amount of misalignment was simply taken from the plaintiffs’ own
Statement of Facts in their motion for summary judgment, (2) that Loumiet’s statement
of opinion as to the speed of the truck is merely a response to the testimony of plaintiff’s
expert Dr. Wolf as to the truck’s speed, (3) that Loumiet’s reliance on the Zarembski
treatise is similarly a reflection of Wolf’s use of the treatise, and (4) that the issue of ballast
was discussed in Loumiet’s report and deposition, and in any event any ambiguity is the
fault of BNSF, which prevented actual measurements of the ballast present at the scene
by reworking the area after the accident.
The court finds that the motion to strike should be granted. First, while plaintiffs
have separately asserted that the track misaligned some 7 to 10 inches, this does not mean
that Loumiet may provide opinion evidence on the issue. In his deposition, Loumiet states
the amount of deformation not as something that he is simply assuming, based on other
evidence, but suggests that this is his opinion as well — stating that such a determination
“can be reliably made from the available evidence in this case.” In his previous report

Dr. Allan Zarembski, “Survey of Techniques for Increasing the Lateral Resistance of Wood Tie Track,”
University of Delaware Department of Civil and Environmental Engineering, available online as sponsored
research at the Railway Tie Association website (www.rta.org).
8

50

and deposition, Loumiet made no attempt to offer an opinion as to the amount of
misalignment.
Similarly, Loumiet acknowledged in his deposition that he had not analyzed the
force the train put on the tracks as it went over the misalignment. Again, the focus of the
report is on stopping distances. Loumiet did not attempt to explain how any lateral forces
created by braking caused the derailment. As plaintiffs note, the intervenors’ response
addresses Loumiet’s opinions as to longitudinal forces by attempting to argue that they
should not be excluded under Rule 26 because they are not new. But plaintiffs also
challenged Loumiet’s declaration addressing the longitudinal effects of braking under
Rule 702, arguing his conclusions are not only new but also unsupported by any
documentation, data, or testing, and that intervenors wholly fail to address the issue. The
court finds that such opinion is properly excluded under both Rule 26 and 702.
The court finds that Loumiet’s calculations of the truck’s speed and his reliance on
the Zarembski treatise should also be excluded. The new opinion testimony is not a fair
and necessary response to new information. Once Wolf delivered his report, which
included calculations as to the truck’s speed, the intervenors could have sought leave to
file a supplemental report. They did not do so, nor did they file any such supplemental
report until after the time authorized by Rule 26(a)(2)(D)(ii) for such supplementation.
Instead, they first referenced the matter some two months after plaintiffs moved for
summary judgment, by submitting a new declaration by Loumiet in conjunction with
their response.

51

Nor can the speed of the truck be considered a novel issue which Intervenors could
not have anticipated until Wolf’s testimony. The impact of the truck on the rails, as the
most open and obvious event leading to the derailment, was present in the case from the
very beginning. The force with which the truck struck the track – including its speed at
the time — were issues which should have been addressed in any initial report by experts
in the case. See Spirit Aerosystems, Inc. v. SPS Technologies, LLC, Case No. 9-CV-1144, 2013
WL 6196314 at *6 (D.Kan. Nov. 27, 2013) (while an expert report may be supplemented
based on new information not previously available, “a lack of diligence in pursuing
information that could have been available at the time of the original report does not
mean the same as information that was not available”).
The same is true with respect to Loumiet’s new reliance on the Zarembski treatise.
Again, the facts surrounding the truck’s impact were matters for the initial report of any
expert. Loumiet was required to present his opinions on the issue and any underlying
supporting documentation in his report. Instead, he made no calculations and cited no
support. Intervenors are correct that the Zarembski treatise was an exhibit to Wolf’s
deposition — because counsel for intervenors included it the record. Wolf did not cite the
treatise in his report, and it does not appear the treatise itself was discussed during the
deposition. The Zarembski treatise is publicly available, and could have been used by
Loumiet in his original report. The unilateral action by counsel in marking the treatise as
a deposition exhibit is not a valid basis for offering a subsequent, new opinion by their
own expert, when that opinion should have been presented months earlier.

52

The testimony by Loumiet as to the effect of more or better ballast is also subject
to exclusion. First, the opinion testimony is new and properly excluded. While Loumiet
did discuss the purpose of ballast generally in his report and deposition, he did not give
an opinion as to the causal effect of the ballast on the accident. He gave no opinion as to
the lateral force applied to the track by the truck, and did not discuss the “quality” of the
ballast. Loumiet expressly disclaimed having any opinion at his deposition, stating, “I’m
not opining about the ballast conditions, and, in fact, it’s my understanding others will
deal with that issue.”
The opinions as to the causal effects of the ballast at the scene of the accident are
new opinions. In his deposition, Loumiet disclaimed such opinions:
Q. Is it fairly well recognized that the truck caused the misalignment?
A. Well, the truck, combined with the ballast conditions. Although I'm not
opining about the ballast conditions, and, in fact, it's my understanding
others will deal with that issue.
***
Q. Okay. You've not looked at anything or quantified the stability of the
ballast section to withstand lateral forces; have you?
A. No. That would be the side of BNSF, or AREMA, a spec in that regard.
Q. Okay.
A. But otherwise I'm not giving those calculations.
Q. But as far as how the forces actually imparted by the truck, when it hit
the roadbed, under the circumstances existing on March 14th, you're not
going to be suggesting to what extent the ballast contributed to that
misalignment; are you?
A. No.
53

***
Q. So you're not suggesting that a different ballast shoulder would have
prevented a lateral displacement when the truck hit the ballast as it did?
A. No.
The focus of Loumiet’s original report was his claim that the shoulder area should
have been constructed differently, so that the truck would never have hit the rails, but
come to a stop sooner. The opinion offered for the first time in response to a summary
judgment motion—that different ballasting would have prevented derailment by
softening the impact from the truck—is a new opinion properly excluded under Rule 26.
Additionally, the evidence is properly excluded under Rule 702. Loumiet offers
simply conjecture (stating that with different ballast it is “possible the track would not
have misaligned” (emphasis added)) based upon no underlying documentation or
testing. Intervenors argue that such documentation is simply the plaintiffs’ own fault, as
“[i]t is impossible to calculate the exact amount of restraint the ballast shoulder provided
at the misalignment location.” (Dkt. 447, at 20).
The railroad plaintiffs point out that the reballasting undertaken by BNSF
immediately after the accident only occurred west of the accident, in the area where the
train cars derailed. The area east of the misalignment were not substantially affected by
the reballasting. According to information supplied by the plaintiffs, they specifically
invited intervenors to inspect this area within a month of the accident, but Intervenors
refused.

54

Blackwell
Alan Blackwell is a railway engineering consultant hired by the Intervenors to
discuss the condition of the track near the accident. Blackwell submitted his report on
April 2, 2018. As noted earlier, the deadline for expert discovery was May 7, 2018. In their
present motion, the railway plaintiffs argue that the new Declaration signed by Blackwell
on June 28, 2018 (and submitted by Intervenors the same day in conjunction with their
Response to plaintiffs’ motions for summary judgment Blackwell) contains substantial
modifications or additions to Blackwell’s earlier report, and should be stricken as either
improper supplementation under Rule 26, or as unreliable under Rule 702. In their
Response, Intervenors only cite to the new Declaration, not the original Report by Mr.
Blackwell.
The full extent of the methodology that Blackwell used to determine if, how, and
to what degree various factors caused the derailment is set forth in his Report’s sections
on “Methodology” and “Summary and Grounds for each Opinion,” which explain that
his opinion is grounded on his “technical training, and specialized knowledge and
experience.”
Blackwell agreed in his deposition that he had not performed a “detailed analysis
of what caused this derailment.” Asked if he had conducted any analysis of “the forces
involved” in the accident, Blackwell testified, “I wouldn’t call it that.” He also testified
that he has not calculated the amount of force the Cimarron truck exerted when it struck
the BNSF track structure, and does not have the ability to do so. He does not know and
has not analyzed how much force was necessary to move the track structure out of
55

alignment. Blackwell acknowledged in his deposition that he does not know what the
term “the scientific method” means.
Blackwell has testified that, based on his knowledge and experience, that with an
eight-inch ballast shoulder the Cimarron truck would not have knocked the track off
alignment. Blackwell acknowledged that fouled ballast can be objectively tested for or
confirmed with a sieve test, and that there are ways to objectively test whether a roadbed
is soft. However, Blackwell did not do any testing of the ballast near the scene to test his
claims.
The Declaration includes a photograph of the area (Exhibit D) which it describes
as being taken “only a few days after the derailment cleanup was completed and the track
was put back into service.” In fact, the photograph was taken by Intervenor Glory
Pennington (for purposes of supporting a claim of inadequate drainage) months after the
derailment, on June 8, 2016.
Blackwell did not look at any weather records.
Blackwell testified in his deposition that there was no evidence of track defect in
BNSF notes taken before the accident. He agreed there was no evidence of alignment
defects, gauge defects, cross-level defects, or track surface defects before the truck impact.
Blackwell has stated that inspection notes after the accident indicate cross-level defects
and otherwise improper ballast.
The plaintiffs note that Chad Holsteen, chief of the BNSF road gang operating in
the area in the months before the derailment, worked on “spot surfacing, getting rid of

56

mud holes,” and did a little bit of tamping here and there. Hosteen testified his crew did
not need additional ballast to do the spot surfacing and getting rid of mud holes.
Blackwell concluded:
It is my opinion that the following cause codes contributed to the
derailment that occurred near milepost 373 on or about March 14, 2016.
- T001

roadbed settled or soft

- T104

Disturbed ballast section

- T105

Insufficient ballast section

- T108

Track alignment irregular (other than buckled/sun kink)

- H499

Other way and structure defect (Provide detailed description in
narrative) Fouled Ballast, Drainage embankment excavation
improper width and depth/Drainage culvert completely
obstructed not providing adequate drainage and accommodating
expected water flow for the area concerned.

- H699

Speed, other (Provide detailed description in narrative) Failure to
issue appropriate temporary speed restriction when there was a
deviation in the track beyond the limiting tolerances and the track
had been disturbed and the ballast section not restored.

- M506

Track damage caused by non-railroad interference with track
structure

The court denies plaintiffs’ request to strike various portions of Blackwell’s
Declaration, at least to the extent that it is grounded on the contention that the opinions
are novel or supplemental opinions and thus barred under Rules 26 and 37. Although
formatted differently from the original Report, a detailed examination of the Declaration
reveals that its ultimate conclusion—that poor maintenance contributed to the derailment
— replicates the conclusion of the Report. According to Blackwell, the misalignment was
caused or aggravated by defects in the track and its supporting ballast. He contends that
ballast problems were aggravated by poor drainage in the area, and the failure to impose
57

speed restrictions in light of these problems. Further, the court finds that Declaration
premises these conclusions on the same evidence cited in the original Report:
photographs of the scene before and after the accident, BNSF track maintenance records,
and FRA and BNSF track maintenance guides and recommendations.
The plaintiffs argue that Blackwell’s conclusions are unreliable. They note, for
example: (1) that the blocked culvert cited by Blackwell was approximately a quarter mile
away from the actual site of the derailment; (2) that a photograph showing water pooling
taken by a passenger was not, as Blackwell assumed, taken within days of the accident
but months later; (3) that the road gang leader denies engaging in any extensive
resurfacing in the area that would have required “restoration” of any ballast; (4) that the
resurfacing in any event occurred four weeks before the accident so that any loosened or
disturbed ballast would have safely compacted in the interim; (5) that Blackwell does not
understand the term “scientific method,” and (6) that the district court granted a motion
to restrict Blackwell’s testimony as to track conditions in a separate case
These and other issues raised by plaintiffs raise a substantial question as to the
reliability of Blackwell’s opinions under Rules 702 or Daubert. Blackwell does have
extensive training and experience in track maintenance, has explained his opinions, and
has cited the evidence and reasoning behind them. To the extent that he has relied on
BNSF and FRA materials, and on photographic documentation, such materials appear to
be matters of general acceptance and usage within the field.
However, the court concludes that the Intervenors have failed to show that
Blackwell’s conclusions are sufficiently reliable to be admissible. Although Blackwell has
58

attempted to provide those conclusions with a veneer of objectivity by using a laundry
list of BNSF “cause codes,” an examination of the actual method Blackwell employed in
reaching those “cause code” conclusions indicates that the opinion is unreliable and not
helpful to any finder of fact.
Here, the Intervenors have failed to show how Blackwell’s conclusions are
supported by sound methodology. Blackwell does not know what the scientific method
is. He has not demonstrated how any underlying “facts and data” actually support the
“cause codes” conclusions, or shown how the various maintenance issues he has
otherwise identified would have measurably reduced the longitudinal resistance of track
ballast. He agrees that he conducted no actual studies of the physics of the truck impact,
or the degree longitudinal resistance necessary to make track immune to damage from a
thirteen-ton truck. The maintenance issues identified by Blackwell occur at some distance
from actual site of the derailment, which occurred at a specific deformation in the rails
caused by the impact of the Cimarron truck. The rails were not deformed at the
obstructed culvert cited by Blackwell, or anywhere else other than the place where
Cimarron’s truck struck the railway.
The Intervenors’ Response argues that Blackwell’s approach is reliable, because he
adopted BNSF’s system of “cause codes” produced by a flow chart analysis of track
maintenance issues. But this reflects a repeated tendency of Intervenors to shore up the
conclusions of their experts by argument of counsel, rather than pointing to how the expert
reached that conclusion. The court separately addresses the railroad plaintiffs’ request
for bad faith sanctions premised on the changing opinions offered by Intervenors’ experts
59

after the summary judgment motions were filed. But the court notes here that those
requests are understandable, given the lack of clarity in, for example, the response’s
reliance on Blackwell. Thus, the Intervenors cite to reports of prior track resurfacing
maintenance in the general area of the accident, an aerial photo of the area, or evidence
of obstructed drainage. But closer examination indicates that the underlying facts cited
as support in the response either (1) were not cited by Blackwell in his report, or (2) reflect
conditions chronologically or geographically distant from the scene of the accident. For
the conditions actually cited by Blackwell, there is no evidence of track buckling or
misalignment. The misalignment occurred only at the Cimarron truck’s point of impact.
The court further finds that Blackwell’s conclusions excludable for another reason.
These conclusions are unreliable and unhelpful because they amount, in the end, to
nothing more than an invitation for the jury to speculate about how the various factors
presented in his report contributed to the accident. When expressing an opinion as to the
cause of an event, an expert must not only rely on sound methodology, he must also
account for obvious alternative explanations. Lanzon v. Senco Prods., 270 F.3d 681, 693 (8th
Cir. 2001) (citations omitted). See e.g., Smith, 232 Fed.Appx. 783 (10th Cir. 2007) (holding
expert’s causation opinion was unreliable where expert could not rule out any of the
numerous alternative causes for accident).
The Tenth Circuit explained the principle in Taber v. Allied Waste Systems, 642
F3d.Appx. 801, 810-11 (10th Cir. 2016):
In evaluating an expert's testimony, district courts may consider whether
the expert has “adequately accounted for obvious alternative
explanations.” Fed.R.Evid. 702 committee note to 2000 amendment. But an
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expert need not exclude every possible cause of an injury to testify as to
causation. Bitler [v. A.O. Smith Corp.], 400 F.3d [1227,] 1238 n. 6. [(10th Cir.
2004)]. Instead, the expert need only exclude those alternative explanations
that are “obvious”—i.e., where there is “an established connection between
certain possible causes and [the injury].” Id. If there is no evidence showing
a possible alternative is valid, the expert's failure to rule it out does not
render his diagnosis unreliable. Goebel v. Denver & Rio Grande W. R.R. Co.,
346 F.3d 987, 999 (10th Cir.2003). So long as the most obvious causes have
been considered and ruled out, the existence of possible “uneliminated”
causes goes to “the accuracy of the conclusion, not the soundness of the
methodology,” and therefore goes to the weight rather than admissibility
of the evidence. Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C.Cir.1996).
In Bitler, we referred to this process of eliminating causes to arrive at the
most likely as “reasoning to the best inference,” and we analogized the
process to the medical practice of “differential diagnosis.” 400 F.3d at 1237.
In taking this approach, the expert must first identify “some independent
evidence that the cause identified is of the type that could have been the
cause.” Id. The expert must then “eliminate other possible sources as highly
improbable, and must demonstrate that the cause identified is highly
probable.” Id. at 1238….
….
[M]ere acknowledgment of other possible causes cannot establish the
reliability of [an expert]'s causation theory. Rather, “reasoning to the best
inference” means that the expert “must eliminate other possible sources as
highly improbable, and must demonstrate that the cause identified [by the
expert] is highly probable.” Bitler, 400 F.3d at 1238.
Such reasoning to the best inference is missing from Blackwell’s assessment. In the
present case there is quite manifestly an “obvious” alternative explanation for the
derailment — the runaway Cimarron feed truck which forcefully struck the rails at almost
precisely the spot where the train derailed only a few hours earlier. Before this, trains
routinely and successfully passed the area, notwithstanding the supposed poor
maintenance now claimed by Blackwell.

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In the end Blackwell’s report is simply a list of various hypothetical factors which
might have contributed to the accident. Blackwell does not show that it is “highly
improbable” that the truck impact alone would not have caused the derailment. Similarly,
there is nothing in the Report or Declaration to show that the additional railroad
maintenance errors (summarized in the accident codes in Paragraph 29 of the
Declaration) are the “highly probable” causes of the derailment.
As noted earlier, Blackwell acknowledged in his deposition that he had not
attempted to reconstruct the accident, or conducted any “detailed analysis of what caused
this derailment.” He did not assess the force with which the Cimarron truck struck the
BNSF track structure or how this affected the track, and thus cannot establish that it is
highly improbable that the runaway truck, by itself, caused the accident.

Nightenhelser
Cimarron’s response to Amtrak’s summary judgment motion depends in part on
its expert Stuart Nightenhelser’s statements that the train headlight was misaimed, and
asymmetrical, that a proper headlight would have illuminated the misalignment at 800
feet, and that the crew was inattentive. The court finds these conclusions highly
unreliable and inadmissible.
Nightenhelser has bachelor of science degree in physics and mathematics with a
minor in chemistry. He has ridden on some locomotives in the past, but has never
inspected the type of locomotive which was involved in the derailment.

62

In his deposition, he was asked, “Are you making any judgments or rendering any
opinions as to what the actual output of the lamps on this particular locomotive were?”
He responded: “Not by way of this analysis, but by inspection of the video, something is
wrong with the lights on this locomotive. But I haven't worked that into any analysis.”
He was also asked about the distance at which the crew could see the
misalignment:
Q:
Okay. Do you have any opinion as to whether the train crew could
have seen this misalignment when they were 800 feet away on the night of
the accident?
A:

With the lights as they were?

Q:

Yes.

A:

No. I can’t tell you.

Asked about the supposed problem with the headlights, Nightenhelser said, “It’s
just something I can’t explain to you.” And asked if these problems diminished the
candela output of the lights, Nightenhelser responded, “I don’t know. It’s certainly a
possibility.”
Nightenhelser agreed that he cannot make any reliable assessments of illuminance
from the headlights by looking at the locomotive video. He testified that that he could
not say within a reasonable degree of scientific certainty that the lights did or did not
meet the candela output required by the FRA regulations.
Nightenhelser does not know how much light from the headlight was reaching
800 feet down the rails at the time of the derailment. He agreed that there is no aiming or
adjustment of either the headlights or the ditch lights.
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According to Nightenhelser, the lights might have been misaimed because of some
“error or damage” but has seen no evidence of such damage on the locomotive in
question. Nightenhelser also suggested a potential error in the installation of the lamps
but does not even know if it is possible to install them incorrectly because he has never
installed one.
Nightenhelser was directly asked if he knew whether a person would have been
illuminated 800 feet in front of the locomotive on the night in question. He responded he
did not know.
Nightenhelser stated in his report:
Both Ms. Montanez and Mr. Blea had the opportunity to perceive the
misaligned track at least 800 feet, and up to 1300 feet, before reaching it.
***
Regardless of the poor and mis-aimed lighting on the locomotive, both crew
members must have been extremely inattentive to have not perceived the
misaligned track long before it became visible in the video. Had they been
keeping a proper lookout to the track ahead of them, they could have perceived
the misaligned track from more than 800 feet away and been in a position to
respond to it much earlier.
(Emphasis added).
The court finds Nightenhelser’s conclusions inadmissible because they attempt to
add to Amtrak’s duties with respect to the headlight. As discussed below, Amtrak’s duty
to illuminate its trains is defined by 49 C.F.R. § 229.125. Nightenshelser’s attempt to craft
a duty far beyond § 229.125 is inadmissible, because any such duty of care is preempted.
As further discussed below, § 229.125 requires a headlight of at least 200,000
candela, and further provides that a railroad satisfies this requirement by providing a
64

single lamp of the type used on the Amtrak train. Nightenhelser, however, opines that
the regulation actually requires a headlight of over a million candela, some five times the
actual required amount of light. He accomplishes this by taking the highest recorded
actual output for such a lamp (275,000), multiplies it by two for the two lamps in the
headlight (even though the regulation explicitly requires only a single blub of this type
be lit), and then doubles it again, by adding the two auxiliary lamps on either side of the
headlight (which are actually pointed at an angle and are intended9 to help make the train
visible to motorists, rather than increase the vision of the train’s crew).
The court finds that Nightenshelser’s view of headlight brightness is so violently
at odds with a plain reading of the § 229.125 that it that presents no reliable or admissible
evidence. Whether couched as an interpretation of federal law or (as expressed in
Cimarron’s response) a claim of negligence per se, the court finds Nightenhelser’s opinion
reflects an attempt to magnify the standards for a locomotive headlight well beyond what
is required by the text of § 229.125, and any claim of fault on the part of Amtrak premised
on such a magnified duty is preempted by federal law.
Equally unacceptable are his unsupported assertions that the train’s headlight was
defective or misaligned. An expert should be able to offer more than mere conjecture.
Nightenshelser simply speculates about the “possibility” that the actual Amtrak

See Railroad Locomotive Safety Standards: Clarifying Amendments; Headlights and Auxiliary Lights, 68
Fed. Reg. 49713-01, 2003 WL 21959742 (August 19, 2013) (”[t]he primary purpose of locomotive auxiliary
lights is to enhance the visibility of the front-end locomotive of a train from the perspective of a driver of a
motor vehicle approaching a grade crossing”) (citing 61 Fed. Reg. 8881; Locomotive Visibility; Minimum
Standards for Auxiliary Lights, 61 Fed. Reg. 881-02, 1996 WL 93211 (March 6, 1996)).
9

65

headlight suffered from diminished brightness. The hallmark of a reliable expert is the
ability to articulate how his opinion is justified by his experience or by observed data. See
Gen. Elec. Co. v. Joiner, 522, U.S. 136, 146 (1997) (“nothing 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”); United States v. Nacchio, 555 F.3d 1234,
1258 (10th Cir. 2009). Here, asked about his opinion that Amtrak’s headlight was
defective, Nightenhelser responds with a je ne sais quoi— “It’s just something I can’t
explain to you.”
Moreover, with respect to alleged misalignment of the headlight, Nightenhelser’s
opinion is at odds with itself. To support the defective headlight claim, Nightenhelser
now opines that the video shows that the lamps are aimed more to the left than the right.10
But Nightenhelser has also asserted that the train crew kept an inadequate lookout
because the misaimed headlight still revealed the misaligned track:
Regardless of the poor and mis-aimed lighting on the locomotive, both crew
members must have been extremely inattentive to have not perceived the
misaligned track long before it became visible in the video. Had they been
keeping a proper lookout to the track ahead of them, they could have perceived
the misaligned track from more than 800 feet away and been in a position to
respond to it much earlier.

Further, to the extent Nightenhelser is simply stating his subjective impression of what he sees in the
video, the factfinder could do the same. Such opinion, unsupported by scientific data or testing, is not
helpful to the jury. See Mayfield v. Brewer, 2014 WL 718049, *2 (S.D. Miss. Dec. 16. 2014) (excluding testimony
of expert who “largely describes what he sees in the video” since “the jury can view the subject video and
come to their own conclusions … based on their common knowledge and experience”).
10

66

Further, the proffered opinion that the headlights were misaimed rests on the locomotive
video, which Nightenhelser otherwise acknowledges lacks clarity.

In his report,

Nightenhelser described the video as “exhibit[ing] serious degradation in resolution,
brightness dynamic range and brightness and color sensitivity compared with human
vision,” and wrote that the “poor resolution of the video imagery also plays a substantial
role in whether and how scene elements are perceived.” The opinion is not premised on
any reliable methodology. Coupled with his acknowledgement that he simply does not
know how much light the actual headlight was projecting 800 feet ahead, the court finds
the opinion should be excluded.
Finally, the court grants Amtrak’s motion with respect to Nightenhelser’s opinion
that the train crew failed to keep a proper lookout. Nightenhelser is an engineer, and
expressly acknowledged in his deposition that “I don't hold myself out to be a broad
human factors expert.” He further testified that he has no experience in train handling or
operating a locomotive. The introductory section of his report cites no human factors
training or experience, only his expertise in physical sciences, specifically: “physics,
mathematics, accident reconstruction, vehicle dynamics, optics photogrammetry,
lighting, human vision, and visibility.” (Dkt. 481-1, at 5). And the analysis section of his
report (Id. at 5-12) is entirely given over to Nightenhelser’s physical assessment of the
video.
As noted earlier, the factfinder can watch the video and reach its own conclusions
as to what it contains. Nightenhelser’s additional assertion that the crew must have been
“extremely inattentive” is a conclusion wholly unsupported by his training or expertise.
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Because the assertion is unsupported by any reliable methodology or data, the court
grants Amtrak’s request to exclude it.

Mathison
Brad Mathison provided his report on April 2, 2018, and was deposed April 24,
2018. Mathison did not submit a timely supplement to that report. Instead, consistent
with the pattern established during the first set of summary judgment motions,
Intervenors responded to Amtrak’s motion for summary judgment on the headlight
claims (Dkt. 474) together with a new Declaration by Mathison. (Dkt. 474-2). The
Declaration cites the materials cited by the railroad plaintiffs in conjunction with their
May 31, 2018 summary judgment motions, unspecified “discovery documents,” and a
recently-produced, post-derailment locomotive video.
The Declaration is the subject of a corresponding Motion to Strike by Amtrak. (Dkt.
478), which the court finds should be granted. As noted elsewhere in this opinion, under
the circumstances of the case, the court finds no abuse of discretion in the decision of the
Magistrate Judge to allow the headlight claims to be added to the case. But nothing in
that decision may be taken as justification for the attempt by Intervenors to “strengthen

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and deepen” Mathison’s original report,11 or as carte blanche to circumvent the existing
requirements for timely expert disclosures.12
The court finds the attempted supplementation is improper. In the Declaration,
Mathison applies photogrammetry principles to still images captured from video after
the train came to a stop, comparing the light reflecting off of sign posts, and then opines
about the aiming of the headlights. However, the screen capture image Mathison uses in
his September of 2018 Declaration is essentially identical to another image, contained in
the NTSB’s “Event and On-Board Image Recorders Group Chairman’s Factual Report,”
which was issued on April 5, 2016, and published on November 23, 2016.
The Intervenors argue that the new Declaration is simply an elaboration of the
principles which Mathison used in his April report, and that Amtrak has no grounds for
complaint, because the additional analysis was required after it produced additional
footage of the locomotive video after the Magistrate Judge’s Order of June 29, 2018. In

“A supplemental expert report that states additional opinions or rationales or seeks to strengthen or
deepen opinions expressed in the original expert report exceeds the bounds of permissible
supplementation and is subject to exclusion under Rule 37(c).’” In re Cessna 208 Series Aircraft Prod. Liab.
Litig’n, No. 05-1721-KHV, 2008 WL 4937651, *2 (D. Kan. Nov. 17, 2008) (internal quotation and citations
omitted). Nor may Fed.R.Civ.P. 26(e) “be used to provide an extension of the expert report deadline or
sandbag one's opponent with issues that should have included in the original report.” Spirit Aerosystems,
Inc. v. SPS Tech., No. 09-1144-EFM, 2013 WL 6196314, *7 (D. Kan. Nov. 27, 2013).
11

12

The Third Scheduling Order (Dkt. 348) required Intervenors’ expert reports by March 30, 2018 (later
modified to April 2, 2018), and all expert discovery was to be completed by May 7, 2018. The subsequent
Fourth Scheduling Order (Dkt. 396), which provisionally allowed Intervenors to include headlight claims
in the Pretrial Order, gave no permission for Intervenors to supplement their expert’s reports. To the
contrary, the Order referenced the Intervenors’ prior April 2, 2018 expert report, and expressly gave the
right “to serve rebuttal or supplemental expert reports” until Jul 9, 2018, and then only to the railroad
plaintiffs. Id. at 4. There is nothing in the record to suggest that Intervenors ever sought leave to supplement
Mathison’s April 2 report. See Dkt. 448, 461.

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response to the Amtrak’s argument that while the still image used in the Declaration
might be similar to previously available still images, Mathison was only able to complete
his analysis once Amtrak had produced the video footage with a non-oscillating pattern
of light. (Dkt. 500, at 8).
These representations are not correct. The new Declaration addresses a wholly
new subject, expressing opinions as to the sufficiency or aiming of the headlights, which
was not contained in the original report. That earlier report contained no discussion of
the requirements of § 229.125; Mathison now contends the Amtrak headlight fails to
comply with that regulation. The video produced in July provides no justification for
Intervenor’s actions. First, as noted, Intervenors made no attempt to obtain leave to
supplement Mathison’s report. Rather, they once again ignored the letter and purpose
of discovery and disclosure deadlines, unilaterally offering a new expert report long after
the deadline and after their opponent filed its summary judgment motion. Second, as
Amtrak documents in its Reply (Dkt. 516, at 6-8), the representation is simply false. On
October 26, 2017, Amtrak supplied to Intervenors video which included footage showing
the scene after the oscillating light had stopped. The Intervenors have failed to identify
information which was not available at the time of the April 2 report, and the court
excludes Mathison’s Declaration pursuant to Rules 26 and 37(c).
The court finds that the opinions expressed in Mathison’s September Declaration
also should be excluded under Rules of Evidence 702 and 703. Mathison has education
and training in engineering design and computer graphics, and experience in land use

70

surveys and computer imagery. But he has no demonstrated education, training, or
experience to support the opinions offered here.
The problem is not, as Intervenors suggest in their cursory discussion of the issue
of reliability (Dkt. 500, at 25-27) that Mathison did not “use[] his specialized knowledge
to create a 3D model” that was “meticulously created,” or that in doing so he failed to
utilized “photogrammetry principles and a computer program called Lightwave 3D” to
generate that model. Photogrammetry is simply “the science of measurement from
photographs,” O.M.I Corp. of America v. Kelsh Instrument, 173 F.Supp. 445, 447 (D. Md.
1959), and certainly may be applied in a given case to produce an accurate 3D model of
an accident scene, based on reliable angular and linear measurements.
Rather, the issue is the Intervenors have done nothing to show that Mathison’s
model produces reliable measures of illumination in the present case.13 Mathison has no
education, training, or experience in locomotive headlights or their use. He has no
particular training or expertise in the methodology he employs here—estimating the
amount of light generated by the headlight based on his own subjective impression of the
brightness of light poles to the north of the track. Based on that estimate of the reflected
light from those poles, he then estimates how much light was generated ahead of the
locomotive.

Intervenors stress that plaintiff BNSF previously employed Mathison to provide expert testimony in a
separate action, Belisle v. BNSF, No. 08-2087-EFM (D. Kan.). But that action did not address the question of
whether a locomotive headlight complied with federal regulations for viewing track conditions, so the
scope of § 229.125 was never in issue. Rather, that case addressed whether the train was visible to a
pedestrian. Relying on an illumination study by a different expert, Mathison reconstructed the scene of the
accident.
13

71

Mathison has identified no prior use of this method by any person, there has been
no demonstration that it would likely render reliable results. As it is entirely based on his
own novel approach (used only in this case in his role as a retained expert witness) and
his subjective impression of the brightness of the poles, based on the grainy black-andwhite video, Mathison’s method cannot be tested for its accuracy. The record indicates
that Mathison has not attempted to document that his method generates accurate
estimates of luminosity along the track’s centerline. The Intervenors have not shown this
approach is supported by general acceptance in the relevant community, and have not
identified any publications or peer-reviewed authority for this approach.
To the contrary, the other evidence in the case indicates that such estimates are not
reliable. Cimarron’s expert Nightenhelser explicitly testified that the video is seriously
degraded, and is “[n]ot anywhere near” to “what the crew would have seen with their
eyes.” The Intervenors themselves made the same point when asking for leave to
physically inspect Amtrak’s locomotive; such inspection was necessary, they wrote,
because the video “does not … accurately depict what the engineer and student engineer
would actually be viewing as they approached the defect [because] the locomotive video
is such a poor quality.”
As discussed below, the court finds that Mathison’s methodology is inconsistent
with the standard established by § 229.125, which contains specific requirements for
brightness and aiming locomotive headlights. And as discussed below, the FRA has
adopted these requirements after rejecting as subjective and imprecise the requirement
that headlights allow the crew to “see” a person at 800 feet. Yet this is precisely the
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approach that Mathison incorporates into his understanding of the rules, stating in his
deposition that “you’re supposed to be able to see a person 800 feet away.”
The court also finds that Mathison’s opinions have not been demonstrated to be
reliable to the extent they are premised on his relative assessment of different locomotive
videos taken at different times. In his analysis, Mathison compares video taken from a
BNSF locomotive that passed through the derailment site with video captured by the
Amtrak locomotive. However, in his deposition, Mathison testified he does not know
what type of headlamps the BNSF locomotive was using. While he has seen studies
addressing about the spread pattern of locomotive headlamps, he has not looked at such
documents in this case. He also understands that a candela reading would be dependent
upon the angle at which the light reading is taken, and testified that at just 7.5 degrees off
centerline, the light, measured in candela, could fall off substantially from 200,000 to
3,000. At 20 degrees, the light would fall off from 200,000 to 400. The farther outside of
the centerline, the more the light fall-off.
He further testified that the headlamps needed to satisfy the requirements for
auxiliary ditch lights are the same as those that pertain to the locomotive headlights.
Auxiliary lights may be aimed horizontally up to 15 degrees off the longitudinal
centerline of the locomotive. He agrees that if the auxiliary lights were aimed off center,
the intensity of those ditch lights also would be directed off center.
Aligning the lights off center would provide greater illumination off to the left and
off to the right of the tracks, meaning that light from the auxiliary ditch lights would be
cast considerably farther to the side than the headlights would be.
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Mathison does not know what kind of ditch light equipment or lamps the BNSF
locomotive had, or how the auxiliary lights on the BNSF locomotive were aimed or if they
can be aimed. He does not know what lamps were in use on the Amtrak locomotive at
the time of the derailment, or how they were aimed.
Mathison also has not tried to find out which lights in the video are attributable to
which of the lamps, i.e., the headlamps versus the auxiliary ditch lights. He agrees some
of the light shown on the video could be from the auxiliary ditch lights, and that, if the
BNSF train used ditch lights with a 200,000 candela lamp aimed 15 degrees off center,
that would tend to illuminate things off to the left and right more than if they were
aligned down the center of the track.
Aiming the ditch lights off-center would also increase the visibility of objects off
the track itself. If the auxiliary lights were aimed to the right and to the left, that would
increase the visibility of things off the track itself such as the poles that Mathison used for
his lighting analysis.
Mathison testified that if there are two headlamps on the Amtrak locomotive
headlights, with one correctly aimed down the track and one aimed slightly to the left, it
would appear that there was a left bias. He agrees that is one explanation for the light
spread that he saw.
Mathison testified that the black-and-white Amtrak video was shot just after
midnight, when there was no ambient light; the only light that illuminated objects was
that coming from the locomotive or possibly a passing automobile. The BNSF locomotive

74

video was taken somewhere in civil twilight, when there would be ambient light
available that would allow one to see objects even without the headlight.
Mathison testified that BNSF video recorder has a higher definition than the
Amtrak recorder. Because of the better camera, there is more detail in the BNSF
locomotive video than the Amtrak locomotive video. According to Mathison, videos shot
during lower lighting conditions will create more grain and noise. He also testified that
there could be variations between the camera equipment on board the respective BNSF
and Amtrak locomotives, that aspects of the camera, including the lens, the sensor, and
the dynamic range, would affect the quality of the image captured.
Given these circumstances, the court will exclude Mathison’s comparative video
assessment. The comparison addresses different videos from different locomotives, taken
at different times under different light conditions, using different cameras with different
quality recordings. Mathison agrees that the angular setting of ditch lights may greatly
vary the amount of light sent forward, but has no knowledge of the type of headlights or
ditch lights on either train, or the angle at which the ditch lights may have been set.
Finally, the court will exclude Mathison’s additional conclusion the Amtrak
headlight was misaligned, because the locomotive video shows greater brightness just to
the left of the centerline. Again, this is not an opinion grounded on any expertise of the
expert, but a matter which each juror could judge for him or herself. Moreover, nothing
in § 229.125 requires absolute symmetry of illumination for dual lamp headlights. As
discussed below, the regulation provides that in the case of dual lamp headlights using
the type of lamp used here by Amtrak, the crew need only keep a single lamp lit. Here,
75

the slightly greater brightness on to the left could simply be caused by the use of both
forward lamps, in which the second was aimed slightly left of center. Such a headlight
would still be compliant with § 229.125 as to brightness and aiming of the first lamp. In
his deposition, Mathison admitted this alternative explanation could explain the
observed brightness on the left.14

The court notes the “supplemental” memoranda filed by plaintiffs (Dkt. 492, 495) and Intervenors (Dkt.
506, 507) relating to Loumiet and Blackwell. Rather than true supplemental memoranda, the briefs appear
to be Daubert motions, though not denominated as such on the court’s docket, seeking to exclude opinions
of these experts at trial. One memorandum clearly “address[es] the remaining opinions [of Loumiet] that
Intervenors may offer should the case proceed to trial.” (Dkt. 492, at 1-2). The second expressly incorporates
the arguments from the motion to strike Blackwell, but is directed to the “testimony Intervenors are
expected to proffer” from Blackwell. (Dkt. 492, at 6).
14

To the extent that supplemental memoranda are Daubert motions addressing potential trial
testimony, they appear moot in light of the court’s conclusions in this Order. To the extent that they are
taken as “supplemental” support for the original motions to strike, the court notes such briefing is
disfavored. The motions to strike these experts were already fully briefed. Unlike the true supplemental
briefs relating to Colon Fulk, which address his opinions as they relate to the headlight claims advanced in
the Pretrial Order after the first round of motions to strike, the parties have shown no substantial rationale
for repetitive briefing as to Loumiet and Blackwell’s summary judgment opinions.
For a motion before the court, D.Kan. 7.1(c) authorizes the filing of an accompanying memoranda,
a response by the nonmovant, and a reply. Otherwise the rule limits supplemental materials to brief
notations of supplemental authorities. Rule 7.1(f). An additional supplemental brief filed by a nonmovant
is of course a surreply, which is heavily disfavored, and may be submitted only with leave of court. Such
leave is granted only in “exceptional circumstances compelling the filing of such a pleading.” IMC Chemicals
v. Niro, 95 F.Supp.2d 1198, 1214 (D.Kan.2000).
Nevertheless, for purposes of clarity the court notes that it has reviewed the supplemental
memoranda as to Loumiet and Blackwell, and finds the same result applies for their opinions, whether
those cited in opposition to summary judgment or those which might be introduced at trial — the opinions
are subject to exclusion because they seek to impose burdens contrary to law and because they have not
been shown to be reliable under Rule 702.

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Conclusions of Law
Summary of FRSA
Under the FRSA, Congress mandated that “[l]aws, regulations, and orders related
to railroad safety shall be nationally uniform to the extent practicable.” 49 U.S.C. § 20106.
To achieve this aim, the FRSA preempts state laws relating to railroad safety to the extent
a federal regulation or order covers the same subject. Thus, the Act provided:
A State may adopt or continue in force a law, regulation, or order related to
railroad safety until the Secretary of Transportation prescribes a regulation
or issues an order covering the subject matter of the State requirement. A
State may adopt or continue in force an additional or more stringent law,
regulation, or order related to railroad safety when the law, regulation, or
order—
(1)

is necessary to eliminate or reduce an essentially local safety hazard;

(2)
is not incompatible with a law, regulation, or order of the United
States Government; and
(3)

does not unreasonably burden interstate commerce.

The Supreme Court addressed “the pre-emptive effect of FRSA on negligence suits
against railroads” in CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). Noting the
dangers of “unintended encroachment on the authority of the States,” the Court observed
that “pre-emption will not lie unless it is ‘the clear and manifest purpose of Congress.’”
Id. at 664 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The FRSA, as
noted earlier, permits state action where there is no federal regulation “covering” the
77

same subject, or the state seeks to protect against an “essentially local safety standard.”
Because “the term ‘covering’ is … employed within a provision that displays
considerable solicitude for state law,” the Easterwood Court held that for purposes of
preemption, federal regulations “cover” a subject only when they “substantially subsume
the subject matter of the relevant state law,” and not when they merely “‘relate to’” or
“‘touch upon’” the subject area. 507 U.S. at 664.
Applying this standard to the plaintiff’s claim that the defendant railroad operated
at an excessive speed, the Court determined that the claim was preempted because, read
in context, federal regulations covered the issue of maximum speed:
On their face, the provisions of [49 C.F.R.] § 213.9(a) address only the
maximum speeds at which trains are permitted to travel given the nature
of the track on which they operate. Nevertheless, related safety regulations
adopted by the Secretary reveal that the limits were adopted only after the
hazards posed by track conditions were taken into account. Understood in
the context of the overall structure of the regulations, the speed limits must
be read as not only establishing a ceiling, but also precluding additional
state regulation of the sort that respondent seeks to impose on petitioner.
Id. at 674. Nor could the plaintiff escape preemption by arguing that train’s speed was
negligently operated at excessive speed given “essentially local” conditions, because
“[t]he common law of negligence … provides a general rule to address all hazards caused
by lack of due care, not just those owing to unique local conditions.” Id. at 675.
In 2007, Congress amended the FRSA to give “Clarification regarding State law
causes of action” by adopting a new subjection (b) to § 20106. The new provision states:
Nothing in this section shall be construed to preempt an action under State
law seeking damages for personal injury, death, or property damage
alleging that a party—
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(A)
has failed to comply with the Federal standard of care established by
a regulation or order issued by the Secretary of Transportation (with respect
to railroad safety matters), or the Secretary of Homeland Security (with
respect to railroad security matters), covering the subject matter as
provided in subsection (a) of this section;
(B)
has failed to comply with its own plan, rule, or standard that it
created pursuant to a regulation or order issued by either of the Secretaries;
or
(C)
has failed to comply with a State law, regulation, or order that is not
incompatible with subsection (a)(2).
“The 2007 amendment is narrow in scope; it was designed to preserve state law
causes of action where railroads were not in compliance with federal law.” Veit, ex rel.
Nelson v. BNSF, 249 P.3d 607, 620 (Wash. 2011) (en banc). Similarly, the clarification “does
not save all state law claims based on internal rules and standards … only those claims
based on a ‘plan, rule, or standard that it created pursuant to a regulation or order issued by
either of the Secretaries.’” Id. (adding emphasis, quoting 49 U.S.C. § 20106(b)(1)(B)). See also
Murrell v. Union Pac. R. Co., 544 F. Supp. 2d 1138, 1148 (D. Or. 2008).
This court has recognized that whether a claim is preempted under the FRSA is
controlled by two questions:
First, the court asks whether the defendant allegedly violated either a
federal standard of care or an internal rule that was created pursuant to a
federal regulation. If so, the plaintiff’s claim avoids preemption. If not, the
court proceeds to the second step and asks whether any federal regulation
covers the plaintiff’s claim. A regulation covers — and thus preempts – the
plaintiff’s claims if it substantially subsumes the subject matter of that
claim, relying on precedent including cases that predate the 2007
amendment.
Stonebarger v. Union Pac. R.R., 76 F.Supp.3d 1228, 1241 (D. Kan. 2015) (citations and
internal quotations omitted).
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Amtrak’s Motions for Summary Judgment
At the time Amtrak filed its original motion for summary judgment, the
Intervenors had advanced some sixteen claims of fault against the carrier. When the final
Pretrial Order (Dkt. 461) was entered, half of these claims were discarded. The Pretrial
Order does not include any claim that Amtrak was at fault for failing to stop for an
“essentially local safety hazard,” for failing to issue a slow order for the area of the
accident, for failing to reduce speed because the headlight was defective, or for operating
the train without ditch or auxiliary headlight. The Pretrial Order also drops any claims
by the Intervenors of inadequate training or claims grounded on the contention that the
train’s headlight was mistakenly set on dim.
Instead, the Intervenors raised eight claims of fault against Amtrak, and eleven
claims of fault against BNSF. The Intervenors allege that Amtrak is at fault for (1) failing
to keep a proper lookout, (2) failing to slow the train to avoid a specific, individual
hazard, (3) failing to report a defective headlight, (4) operating the train with a defective
headlight, (5) not immediately applying brakes, (6) braking while over the misalignment,
(7) failing to exercise the highest degree of care required of common carriers, and (8)
negligently causing damages as a common carrier.
The last two of these claims allege violations of Kansas statutory duties imposed
on common carriers (K.S.A. 66-176 and 66-234, respectively). The two defective headlight
claims, both premised on an alleged violation of 49 C.F.R. § 229.125, were added to the

80

Pretrial Order over the plaintiffs’ objection. The plaintiffs have submitted a separate
motion for summary judgment on the new headlight claims, as well as a motion
challenging the decision of the Magistrate Judge to present such claims in the Pretrial
Order.
To some extent, many of the remaining claims overlap, essentially contending that
a train crew operating with due care would have seen the misalignment and avoided the
accident by prompt braking. Alternatively, the Intervenors allege the crew was negligent
because they should not have braked at all once they crossed the misalignment. The court
finds that the claims of fault by Cimarron and the Intervenors against Amtrak are (1)
unsupported by the facts, (2) attempt to impose duties in excess of that required by
federal law and are thus preempted, or (3) both.
The court will first address the claims of excessive speed and inadequate training.
Claims of “excessive speed” are no longer explicitly advanced against Amtrak in the
Pretrial Order by the Intervenors (Dkt. 461, at 15-16), and they are not mentioned by
Cimarron in its enumeration of its defenses (id. at 20-22). It simply complains that Amtrak
was “negligent,” identifying in particular only the allegations that the headlight was
defective, and that the train crew was not keeping a proper lookout. However, in its
factual contentions narrative, Cimarron does assert that Amtrak “failed to train or
otherwise instruct its employees with respect to the track over which they were operating
… and failed to advise as to the condition of the subject track.” (Id. at 10). It also asserts
as a fact that “Amtrak was negligent in failing to train its employees with respect to the
proper operations and braking of trains.” (Id.) Moreover, Cimarron claims that Amtrak
81

knew of the track conditions yet “failed to take steps to operate the train at a safe speed,”
and that “the derailment would not have occurred [if Amtrak’]s employees operated the
train at a safe speed.” (Dkt. 461, at 10).
Thus, in the following section the court will address the claims of excessive speed
and inadequate training before turning to those of failure to maintain a proper lookout,
failure to brake ahead of the misalignment, and braking while over the alignment.15
The court finds that any claims of excessive speed against Amtrak are preempted
by the FRA. At the time of the derailment, the Amtrak train was travelling at 60 miles per
hour on Class 3 track, a speed permitted by 49 C.F.R. 213.9. Any suggestions that Amtrak
was negligent in operating the train at an excessive speed (or expressed conversely as
failing to slow the train) are preempted by federal law. See Seyler v. Burlington N. Santa Fe
Corp., 102 F. Supp. 2d 1226 (D. Kan. 2000).
Under the facts of the present case, the claim that Amtrak should have slowed the
train to avoid a “specific, individual hazard” does not offer any basis, by itself, for

Intervenor’s claims under K.S.A. 66-176 and 66-234 provide no separate basis for assessing fault against
Amtrak. The first statute simply authorizes an award of actual damages and attorney fees against common
carriers violating “provisions of law for the regulation of public utilities or common carriers.” See Dietz v.
Atchison, Topeka & Sante Fe Ry. Co., 16 Kan.App.2d 342, 823 P.2d 810, 815 (Kan.Ct.App.1991); Order of March
29, 2017 (Dkt. 150) (recognizing general right of action against railroads). The second statute authorizes a
right of action for negligence against railroads. See Saliba v. Union Pacific R. Co., 264 Kan. 128, 132, 955 P.2d
1189 (1998) (railroads are not insurers under K.S.A. 66-234, which requires that railroads “exercise due
care”). Both statutes simply impose a general duty of due care. See Connolly v. Samuelson, 671 F.Supp. 1312
(D. Kan. 1987) (“Common carriers are required to use the highest degree of skill, care and foresight”);
Shirley v. Glass, 297 Kan. 888, 901, 308 P.3d 1, 9 (2013) (Kansas “highest degree of care” cases reflect “nothing
more than particularized applications of general tort principles,” under which “the law requires one to be
as cautious as reasonably possible when dealing with an object that has obviously lethal capabilities,” and
that ultimately “the standard is always one of ‘reasonable care”). Neither statute sets forth any
independent, specific duty for train crew training, headlights, speed, or operation which would survive
federal preemption. The specific claims of fault advanced against Amtrak, discussed in the body of the
court’s opinion, all involve matters subject to specific federal regulations.
15

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escaping preemption. In Easterwood, the Supreme Court recognized that federal
preemption may not apply if a railroad fails to properly operate in light of an “essentially
local condition” (which is not alleged in the Pretrial Order) or fails “to slow or stop a train
to avoid a specific, individual hazard.” 507 U.S. 658, 675 n. 15 (1993).
A specific, individual hazard is “a unique occurrence which could lead to a specific
and imminent collision,” rather than a generally dangerous condition. Hightower v. Kan.
City S. Ry. Co., 70 P.3d 835, 847 (Okla. 2003). The exception almost always relates to the
“avoidance of a specific collision.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 640 (5th Cir.
2005) (“A condition that can be or is present at many, or most sites cannot be a specific,
individual hazard.”). “Imminence and specificity are crucial components of the specific,
individual hazard exception to preemption.” Partenfelder v. Rohde, 356 Wis.2d 492, 850
N.W.2d 896 ,900 (2014).
That the Amtrak train was travelling in middle of the night along otherwise dark
countryside does not create a specific, individual hazard, since such conditions are
“capable of being taken into account by the Secretary and are covered by the federal
speed regulations.” Myers v. Missouri Pac R.R., 2002 Ok. 60, 52 P.3d 1014, 1028 (2002).
Thus, “ordinary visibility restrictions … do not constitute ‘specific individual hazards’
that may create an exception to preemption.” Seronde v. BNSF Ry., 2015 WL 1516534, *2
(Ariz. Ct. App. April 2, 2015) (citing cases). A specific hazard presents an imminent risk
of collision once the train crew can perceive it. See Partenfelder, 850 N.W.2d at 522 (hazard
“did not arise until Monica’s van was visible to the train crew”).

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Here, the nonmovants’ claim of failure to slow for a specific, imminent hazard is
entirely contingent upon their separate factual assertion that the misalignment was
visible to the crew at a distance which would have allowed them to stop the train. As the
court discusses elsewhere in this opinion, there is no reliable evidence that the
misalignment was visible at that necessary distance. To the contrary, at the end of the day
all of the reliable evidence is consistent with the locomotive video evidence—the
misalignment appears out of darkness approximately 300 feet ahead of the train, giving
the crew about two seconds to react.
Next, the court finds that the inadequate training allegation advanced by
Cimarron is subject to summary judgment. Such claims are subject to FRA preemption in
light of 49 C.F.R. Parts 217, 240, and 242, which provide comprehensive and specific
regulations as to train crew qualifications and training. Cimarron has failed to show that
Amtrak has violated any specific federal regulation governing the training of locomotive
engineers, and all training claims are preempted. See., e.g., BNSF Ry. Co. v. Doyle, 186 F.3d
790, 796 (7th Cir. 1999). In fact, it is uncontroverted that the Amtrak crew was properly
trained and certified.
The suggestion that the crew should have received some different training is an
allegation of negligence which is preempted by federal law. See Carter v. National Railroad
Passenger Corp., 63 F.Supp.3d 1118, 1155-57 (N.D. Cal. 2014). Moreover, to the extent that
the suggestion rests on the opinion of Intervenor expert Colon Fulk, the untimely and
recent expansion of Fulk’s opinion in response to Amtrak’s motion for summary
judgment violates Rule 26(a)(2) and is excluded. Fulk’s original report was a purely
84

conclusory observation that the crew had not been trained on “locomotive safety, track
impacts or emergency braking” and that such training is “extremely important.”
Fulk made no mention of the actual requirements of federal regulations as to
training, or explain what Amtrak’s training failed to comply with regulatory standards.
Fulk’s deposition clarified his inability to address the issue. He acknowledged that
Amtrak trains its engineers according to a specific written plan that it submits to the FRA
under Part 240. He has never seen Amtrak’s submission under Part 240 and does not
know what its contents are, and does not know if Amtrak complied with the FRA
submissions for its engineer in this case. Fulk has no grounds for disputing the fact that
Montanez was properly certified as a locomotive engineer.
While Fulk has suggested that Amtrak’s training material should have contained
additional materials, he acknowledges he has not seen training materials from any
railroad that includes the kind of training that he advocates. He has not identified railroad
rules or recommendations from the FRA or NTSB suggesting that locomotive engineers
not apply emergency brakes when encountering a kink or misalignment of track.
Given this background, the court excludes the Fulk’s untimely declaration under
Rule 26(e)(1). And, to the extent Cimarron might invoke the generic “take the safe course”
recommendations in the General Code of Operating Rules cited by Intervenors, summary
judgment remains appropriate. Such internal operating policies are insufficient to avoid
the preemption of inadequately training claims. See Ryder, 2017 WL 4364419, at *9.
The claims of inadequate lookout by the nonmovants, to the extent these are
independent of their new, defective headlight claims, require some evidence that the
85

crew could have seen the misalignment in time to stop the train, given the actual
headlight used on the locomotive and the resulting actual level of visibility available to
the crew. Because Cimarron and the Intervenors have failed to provide evidence of actual
visibility, summary judgment is appropriate as to the claims of inadequate lookout or
failure to stop the train prior to crossing the misalignment. See Nye v. CSX Transp. 437
F.3d 556, 567 (6th Cir. 2006). A full review of the voluminous material submitted to the
court fails to demonstrate that misalignment was actually visible to the crew at a distance
of 800 feet. Contrary expert evidence cited by Cimarron and the Intervenors is, for the
reasons otherwise discussed in this Order, unreliable and also properly excluded under
Rules 26 and 37.
Indeed, those same experts support the conclusion that the track misalignment
was not visible at the distance required to stop the train. Fulk stated in his original report
that the crew could not see the misalignment in time to stop. Loumiet declined to express
an opinion about the issue. And Nightenhelser expressly testified that, the given “the
lights as they were” he “can’t tell you” whether the crew could have seen the
misalignment at 800 feet.
This absence of reliable proof of visibility at 800 feet is entirely consistent with
evidence from (1) the Intervenors’ own expert Mathison, who stated that the headlight
showed the misalignment at 310 feet, (2) the testimony of each member of the locomotive
crew, who indicated that the misalignment appeared immediately before or within two
seconds of the moment train crossed the misalignment, and (3) the NTSB’s factual finding
that an object on the tracks would have been visible at a distance of 381 to 403 feet.
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Finally, the court grants Amtrak summary judgment as to the claim that the crew
was negligent in applying brakes after the train had crossed the damaged tracks, rather
than trying to “ride out” the misalignment. This conclusion is appropriate for two
reasons.
First, there is no reliable evidence to support the theory. The claim is entirely
grounded on Fulk’s opinion, which the court discusses elsewhere in this Order, that this
is the safest course. Fulk is proffered as an expert solely on the basis of his experience,
but he has no experience in observing track misalignment at night; he has come across
two misalignments during the day, and only detected them at relatively short distances.
Moreover, Fulk is not qualified to reliably opine on the course of action that he now
claims Amtrak’s engineer Montanez should have made on the night of the accident: that
is, deliberately deciding not to apply the trains brakes. He has cited no studies, data, or
reports which recommend such an approach. Montanez’s attempt to stop the train was
consistent with Amtrak’s rules, and was not negligent.16
Even assuming Montanez was negligent in attempting to stop the train, there is no
competent evidence that this braking caused the derailment. Fulk is a locomotive, not a

The failure of Intervenors to provide any support for Fulk’s suggested policy of not braking (beyond his
own ipse dixit) is fatal in itself, but the court further notes that there are obvious reasons against such a policy
which a railroad might reasonably consider. That is, even assuming there was some added marginal chance
of derailment by braking, that must be balanced against the greatly increased damage which would because
if the derailment occurs anyway and the train has not been slowed. Cimarron and the Intervenors have
supplied no reliable evidence for the fact finder to fairly judge the decision to apply emergency braking. It
is uncontroverted the FRA, which closely regulates train operation and speed, has issued no advisory for
how a crew should brake when faced with a misalignment. The claims of improper emergency braking are
thus both preempted and lacking in evidentiary support.
16

87

physical, engineer testifying on the basis of his experience. Fulk has no experience with
braking causing a derailment, has performed no analysis of how the various physical
forces on the train would have affected it chances of avoiding derailment, and is not
qualified to address the issue of causation.
Intervenors’ expert James Loumiet has proffered testimony as to the braking
distance required to stop a train. But his report lacks any analysis showing the effect of
braking on derailments, and candidly admitted, when asked if Ms. Montanez would have
avoided derailment by not braking, “That, I can’t tell you.”
Based on all of the evidence in the action, the court concludes that any claims of
fault against Amtrak for failure to maintain a lookout, failure to stop the train, or for
applying emergency brakes are properly dismissed.
Conclusions of Law: Headlight Claims
Amtrak’s duty of care with respect to the train headlights is defined by 49 C.F.R. §
229.125. See Gleason v. Soo Line R. Co., 1999 WL 33656833, *6 (N.D. Iowa, Jan. 12, 1999)
(finding claims of inadequate train lighting “fall squarely within this preempted field”);
Gould v. Norfolk Southern Corp., 1998 WL 35881612, *4 (S.D. Ind. Sept. 30, 1988) (“This
Court's review of the case law confirms the railroad's position that claims that the railroad
should have installed different lighting, horns and bumpers are preempted” by
regulations including § 229.125); Smith v. Norfolk and Western Ry. Co., 776 F.Supp. 1335,
1342 (N.D. Ind. 1991) (“federal law preempts the claim that the train's headlight was
inadequate”). See also Springston v. Consol. Rail Corp., 130 F.3d 241, 245 (6th Cir. 1997);

88

Marshall v. Burlington N., Inc., 720 F.2d 1149, 1154 (9th Cir. 1983); Estate of Strandberg v.
Chicago, Cent. & Pac. R. Co., 284 F. Supp. 2d 1136, 1144 (N.D. Iowa 2003). To the extent
Cimarron or the Intervenors attempt to increase Amtrak’s duties as to the headlight
beyond that defined by § 229.125, such claims are preempted by the FRSA, 49 U.S.C. §
20101 et seq. and the Locomotive Inspection Act, 49 U.S.C. § 20701 et seq.
The regulation is “precise,” providing “specific and adequate specifications for
headlights” by giving ”a specific power amount for the headlights” and “a minimum
illumination distance.” Oglesby v. Delaware and Hudson Ry. Co., 964 F.Supp. 57, 62
(N.D.N.Y. 1997), rev’d on other gds., 180 F.3d 458 (2nd Cir. 1999).
As to the first of these requirements, brightness, Section 229.125(a) provides:
Each lead locomotive used in road service shall illuminate its headlight
while the locomotive is in use. When illuminated, the headlight shall
produce a peak intensity of at least 200,000 candela and produce at least
3,000 candela at an angle of 7.5 degrees and at least 400 candela at an angle
of 20 degrees from the center line of the locomotive when the light is aimed
parallel to the tracks.
As noted earlier, the FRA Compliance Manual recognizes that certain types of
lamps satisfy the standards of the regulation. Further, 49 C.F.R. § 229.125(a)(2):
The following operative lamps meet the standard set forth in this paragraph
(a)(2): A single incandescent PAR–56, 200–watt, 30–volt lamp; a single
halogen PAR–56, 200–watt, 30–volt lamp; a single halogen PAR–56, 350–
watt, 75–volt lamp; two incandescent PAR–56, 350–watt, 75–volt lamps; or
lamp(s) meeting the intensity requirements given above.
(Emphasis added). Here, Amtrak’s train had two PAR-56, 200-watt, 30-volt bulbs,
meeting the regulatory standard. By its explicit terms, the regulation mandates only a
single lamp of that type.
89

With respect to aiming, § 229.125(a) provides that “Each headlight shall be aimed
to illuminate a person at least 800 feet ahead and in front of the headlight.”
Both the brightness and aiming standards provide objective standards for
headlight performance. The brightness standard reflects a modification of the prior
requirement, 49 C.F.R. § 230.231, under which the highlight must
enable a person in the cab of such locomotive who possesses the usual
visual capacity required of locomotive enginemen, to see in a clear
atmosphere, a dark object as large as a man of average size standing erect
at a distance of at least 800 feet ahead and in front of such headlight.
The FRA eliminated this “vague performance standard” in 1980, moving to the “more
precise and scientific” current requirement of headlights producing 200,000 candela. See
“Railroad Locomotive Safety Standards: Clarifying Amendments; Headlights and
Auxiliary Lights,” 69 FR 12532-01, 2004 WL 501925, *12534 (March 16, 2004). The
modification also eliminated that requirement that a person in the locomotive see the
“dark object as large as a man of average size.” The current regulation simply requires
that the headlight be aimed “to illuminate a person” at 800 feet.
While ostensibly acknowledging the controlling standard of § 229.125, (Dkt. 474 at
24; Dkt. 476, at 20), Cimarron and the Intervenors repeatedly seek to evade it by adding
to Amtrak’s duties with respect to the headlight, suggesting, for example, a duty by the
train crew to report a defective headlight. Even setting aside the fact that the headlight
was not defective, the suggestion is an attempt to evade federal preemption by importing
common law negligence duties absent from the regulation. Claims of fault against
Amtrak require proof it violated a federal duty of care. 49 U.S.C. § 20106(b).
90

Similarly, Cimarron and the Intervenors focus on evidence suggesting that the
headlight might not have illuminated the misaligned tracks at 800 feet. As noted earlier,
the runaway Cimarron truck caused an approximate 9-inch shift in the track alignment.
Such a horizontal condition on the ground is much more difficult to see than a vertical
object the size of a person standing beside the tracks. The argument thus again attempts
to modify the amount of visibility required by the federal regulation. See Gaul v. Consol.
Rail Corp., 383 Pa. Super. 250, 264–65, 556 A.2d 892, 899 (1989) (rejecting claim headlight
was defective for failing to illuminate person lying on the tracks because “nothing in the
regulation states that the lights must be angled to illuminate the track bed”).17
Similarly, the Intervenors suggest that the headlight was defective because its
intensity might have dimmed over time, but this is an indirect way of seeking to impose
a burden on Amtrak beyond that required by federal regulation The plain language of §
229.125 requires illumination of a specified intensity of 200,000 candela, but also expressly
provides two ways a railroad can satisfy the regulation—either by installing an
enumerated type of lamp or lamps, “or [using] lamp(s) meeting the intensity

17

The court further observed:

Common sense indicates that the regulation was meant to prevent accidents
involving the most common activity practiced by human beings along or
on railroad tracks, that of walking or crossing. Richard was doing neither,
he was recumbent between the tracks. Under any reasonable construction of
the regulation, the headlights of the train were not required to illuminate him.
383 Pa.Super. at 556 A.2d at 899 (emphasis added).

91

requirements.” § 229.125(a)(2) (emphasis added). The regulation is explicitly disjunctive,
and a railroad using an enumerated lamp thus “meet[s] the standard.” Included in the
enumerated types of lamp is “a single PAR-56, 200-watt, 30-volt lamp.” Amtrak’s
locomotive had two.
Cimarron’s expert Nightenhelser believes the Amtrak headlight was defective
because it was patterned asymmetrically or because one or more bulbs were “dim or not
working properly.” First, the suggestion is speculation which is not founded on any
admissible evidence. The locomotive video shows the headlamp was in operation before
the accident, and the investigation by the Kansas Highway Patrol after the accident found
the headlamps operational.
The nonmovants have failed to provide evidence which would show the train
headlight was misaligned in a way which would violate the regulation.18 As noted earlier,
the regulation requires illumination of “a person” 800 feet in front of the train, and the
regulation should be interpreted consistent with its underlying purpose—determining
the illumination of vertical objects the approximate size of a human being, not track or
ground conditions at that distance.

In light of Amtrak’s motions to strike, the court in this Order separately addresses the issues raised by
the nonmovant’s reliance on the experts Fulk, Nightenhelser, and Mathison. The court here notes that the
Intervenors’ response also relies on their expert James Loumiet. (Dkt. 484, ¶ 45). But Loumiet is an accident
reconstruction expert who provided opinions about the braking distance required to stop the train. He has
no demonstrated expertise in lighting or visibility, and cannot reliably speak to the issue of compliance
with § 229.125.
18

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To “illuminate” means simply “to supply or brighten with light.” United States v.
Flores-Fernandez, 418 F.Supp.2d 908, 913 (S.D. Tex. 2006) (quoting and adding emphasis
to MERRIAM-WEBSTER DICTIONARY 257 (1998)). This portion of the regulation explicitly
focuses on how the headlight “shall be aimed” rather than its brightness; it does not
require that any particular amount or quantum of light reach the person-sized object at
800 feet.

.

Here, the evidence shows that the Amtrak train was illuminating signs at a
distance beyond 800 feet. Of course, the nonmovants correctly point out that that “the
signs, whistle posts and mile makers visible in the video are retroreflective” while a
person is not. (Dkt. 476, at 26). But this misses the point. The signs are not selfilluminating but reflective; to reflect the light back to the locomotive’s camera, the signs
first must have been illuminated by the train headlight.19
The text of the regulation is clear. In direct contrast to the explicit brightness
requirement (200,000 candela generated at the headlight), the aiming requirement does
not specify any amount of light which must reach a person 800 feet way. The regulation
only requires that the light “be aimed to illuminate a person at least 800 feet ahead of an
in front of the headlight.” Here, the video unarguably shows that light from the headlight
was reaching out, and reflecting from, objects more than 800 feet in front of the train.

Intervenor’s expert Fulk expresses the same view based on images of the reflective signs. Asked if this
shows that “the light is bouncing off those reflectors and coming back” so that “the light’s properly aimed,”
he responded, “Yes. Yes.”
19

93

The remaining circumstances cited by the nonmovants do not alter this result.
They cite the NTSB statement of student engineer Zach Blea as showing that the headlight
failed to “illuminate the track at least 800 feet in front of the locomotive.” (Dkt. 474, at 21).
Again, however, the regulation measures aiming by illumination of person
standing vertically, not by the visibility of track conditions. At this point in his statement,
Blea was asked, “How far do you think, do you estimate you could see?” and responded,
“I would say probably about three, maybe four car lengths, if that.” But Blea was clearly
not addressing the issue of aiming or alignment of the locomotive headlights. As noted
earlier, the locomotive video demonstrates that the headlights were aimed so that they
illuminated vertical objects a thousand feet ahead of the train.
Further, the context of Blea’s statement confirms that he was not talking about any
illumination of a vertical, person-sized object. In the cited testimony, Blea was asked to
explain his prior answer, where the question had been “[w]hen you came up to the defect
on the track, did you see it for yourself,” and answered:
Yes I did see it. Recalling the event and the few seconds leading up to it, it
was dark out. It was clear but it was still---the only visibility of the track was
within the beam of the headlight.
(Emphasis added). Blea’s testimony simply confirms that the train’s headlight was
properly pointed forward — “the only visibility of the track was within the beam of the
headlight.” Even if the headlight failed to make the track defect obvious, nothing in Blea’s
testimony, or any other evidence cited by the nonmovants, demonstrates that a person
standing on the tracks would not have been illuminated. Cimarron’s expert
Nightenhelser expressly admitted that, given the quality of the locomotive video, he
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“cannot state whether a person would have been illuminated 800 feet in front of the
locomotive.”
In summary, Amtrak has established that its train used a headlight which
complied with federal regulations as to brightness and aiming. Cimarron and the
Intervenors have provided no admissible evidence that the Amtrak headlight did not
comply with § 229.125. The court finds that summary judgment is warranted.
Further, even assuming that Cimarron and the Intervenors had some evidence that
the train headlight somehow failed to meet the standard of § 229.125, the court would
still grant summary judgment as to the new claims because there is simply no admissible
evidence that a compliant headlight would have prevented the accident.
The nonmovants have supplied no evidence that a non-compliant headlight
caused the accident. The one lighting expert identified by the nonmovants,
Nightenhelser, has explicitly disavowed any opinion as to the actual brightness delivered
by the Amtrak headlight. There is no evidence as to how the actual headlight so deviated
from a § 229.125-compliant headlight that it caused the derailment. There is no factual
basis upon which a rational factfinder could reasonably conclude that a different
headlight would have allowed the crew to see the nine-inch misalignment and stop the
train in time.
The Intervenors suggest that they were frustrated from advancing more reliable
evidence of causation because Amtrak prevented them from inspecting the actual
locomotive, and “thus have no measurements reflecting the actual aim of the headlights
nor the relative intentsity of the light in front of the train.” (Dkt. 474, at 32). The court
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finds no basis for excusing Cimarron and the Intervenors from demonstrating causation,
and instead allowing the factfinder to speculate as to the issue. A careful review of the
procedural history of the action fails to show that the nonmovants made any timely
request to inspect the actual locomotive. (Dkt. 223, 233, 240). To the contrary, consistent
with their explicit (though later forgotten) representation that they were not making a
claim that the actual headlight was defective (Dkt. 240, at 3), the Intervenors originally
asked to inspect only an exemplar locomotive.20
As noted elsewhere in this decision, the court finds no error by the Magistrate
Judge in permitting the defective headlight claims to be included in the Pretrial Order.
But while Intervenors may make such claims, they must support them with reliable
evidence, presented in a timely fashion consistent with the Rules of Civil Procedure and
with a fair opportunity for the plaintiffs to respond.
For the reasons stated earlier, the court finds the evidence cited by Cimarron and
Interventors21 on the headlight issues to be unreliable and untimely, and grants summary
judgment.

The Magistrate Judge denied the Intervenors’s motion to compel an inspection the scene. (Dkt. 248).
Intervenors did not object to this conclusion.
20

This court grants summary judgment as to both § 229.125 headlight claims advanced by Intervenor—that
the crew negligently operated the locomotive with a defective headlight, and that it negligent failed to
report the defect. Section 229.125 occupies the field with respect to railroad locomotive lighting, and as set
forth above provides for objective standards for such lighting. Amtrak’s headlight was compliant with §
229.125.
21

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BNSF’s Motion for Summary Judgment
The primary claims by the Intervenors against BNSF in the Pretrial Order center
on the allegation that it violated federal regulatory standards (or internal rules adopted
pursuant to federal regulations) when it failed to properly maintain the track, track
ballast, and drainage in the general area of the derailment. (Dkt. 461, at 16-19 ¶¶ 1-3, 8)
(citing 49 C.F.R. §§ 213.33, 213.103, 213.118-19). Based on these allegations, they further
allege that BNSF failed to inspect for these problems, and failed to remediate them. (Id.,
¶¶ 4-5, 7) (citing, in addition to the foregoing, 49 C.F.R. §§ 213.1, 213.5, 213.9(b)). The
Intervenors also allege (id., at ¶6), without any reference to any violation of federal
regulations, that BNSF failed to keep its property in a safe condition, and that its conduct
was willful and malicious. (Id. at ¶¶ 9-11). In its defenses in the Pretrial Order, Cimarron
generically alleges that “Amtrak and BNSF were negligent,” but all of its specific
allegations of fault (focusing on the headlight and the actions of the train crew) relate to
Amtrak alone. (Id. at 21).22
The court finds that, to the extent Cimarron and the Intervenors have alleged BNSF
violated common duties of due care by ignoring an “essentially local safety hazard,”
these claims are subject to summary judgment. The Pretrial Order makes no such
allegation, the specific claims of fault by BNSF all fall within the scope of 49 C.F.R. Part

The nonmovants have generally abandoned the previous claim the accident occurred because the crew
mistakenly had the locomotive headlight set to “dim.” However, in one section of the Pretrial Order,
Cimarron asserts that the “one or more of the headlights [was] off or in a very dim state.” (Dkt. 461, at 21).
To the extent this reflects a continued suggestion that the headlight was set on dim at the time of the
accident, the court dismisses it. The uncontroverted facts establish that the locomotive headlights were set
on “bright” prior to the derailment, and set to “dim” afterwards to avoid blinding first responders.
22

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213, and the nonmovants have failed to show an applicable Kansas law, regulation or
order (as opposed to common law principles of care), see Easterwood, 507 U.S. at 673-75,
or the existence of a condition which would provide a narrow exception to preemption.
See Duluth, Winnipeg & Pac. Ry. Co. v. City of Orr, 529 F.3d 794, 798 (8th Cir. 2008) (quoting
National Ass’n of Regulatory Util. Comm’rs v. Coleman, 542 F.2d 11, 14-15 (3d Cir. 1976))
(hazard must be one “not capable of being adequately encompassed within national
uniform standards”).
Next, the court finds that summary judgment is appropriate as to Intervenors’
general claims that BNSF violated its own internal rules or regulations. The Intervenors
have failed to show reliable evidence that such regulations were adopted “pursuant to”
federal regulations. As noted earlier, in this context the violation of an internal policy is
actionable only if the policy was required by federal regulation. See Johns v. CSX Transp.,
210 F.Supp. 1357, 1374 (M.D. Ga. 2016) (“Plaintiff does not point to any federal regulation
or order that required Defendant to create the [policy] on which it relies”); National R.R.
Passenger Corp. v. Young’s Comm’l Transfer, 2016 WL 3538226, *10 (E.D. Cal. 2016)
(“plaintiff has failed to point to any federal regulations mandating the adoption of those
operating policies”); Murrell v. Union Pacific Railroad Co., 544 F.Supp.2d 1138, 1144–51 (D.
Or. 2008).
The Intervenors’ claims against BNSF accordingly depend upon their contention
that the railroad violated various track standards set forth in 49 C.F.R. Part 213. Based on
the uncontroverted evidence, the court concludes BNSF did not violate any standard in
Part 213. Even if it had, the alleged violation was not the actual cause of the derailment.
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Finally, even if a violation occurred which was somehow the cause-in-fact of the
derailment, the court concludes the violation was not the proximate cause of the accident.
Part 213 provides a comprehensive and specific scheme for regulating railroad
track. The uncontroverted facts do not show any violation of the controlling provisions
of Part 213.23 Section 213.9 provides maximum allowable speeds for various types of
track. Section 213.33 requires adequate drainage to support the track roadbed. Section
213.103 provides general obligations with respect to ballast.24 Sections 213.118 and .119
include provisions for continuous welded rail (CWR) track. And Section 213.233 provides
for track inspections.
The evidence shows no violation of the inspection requirements of Part 213. The
prior track geometry measurements demonstrate that the Class 3 track at the scene of the
derailment was in compliance with 49 C.F.R. §§ 213.51, 213.53, 213.55, and 213.63. BNSF’s

Several of the provisions cited by Intervenors do not create any specific obligation for railroads. Section
213.1 simply announces the general scope of Part 213, and provides that “the regulations prescribed in this
part” should be considered individually and collectively, does not set forth any independent standard of
care. Section 213.5 provides a general requirement for corrective actions for track which is out of compliance
with other provisions of Part 213. Neither § 213.1 or 213.5 are identified as track safety standards which
subject a track owner to civil penalties under 49 C.F.R. Part 213, App. B. These provisions in 213.1 and 213.5
are contingent upon some other violation of Part 213.
23

24

Section 213.103 provides:
Unless it is otherwise structurally supported, all track shall be supported by material
which will —
(a) Transmit and distribute the load of the track and railroad rolling equipment to the
subgrade;
(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads
imposed by railroad rolling equipment and thermal stress exerted by the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and alinement.

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prior inspections complied with 49 C.F.R. § 213.233. The evidence shows that, before
Cimarron’s truck hit the BNSF tracks, trains routinely passed the scene without incident.
A few hours after the truck impact, the very next train to pass derailed. Cimarron’s
employees made no attempt to alert the railroad, and the court finds no evidence that
BNSF knew or should have known of the incident. The court grants summary judgment
as to any claim that BNSF violated the inspection duties under Part 213, or that it
negligently failed to alert Amtrak to the danger.
The drainage regulation, § 213.9, requires adequate waterflow “under or
immediately adjacent to the roadbed.” Here the supposedly debris-filled culvert is not
anywhere near the point of the derailment. Nor is there any reliable evidence that the
water conditions had any effect upon the structure of the roadbed at the point of the
derailment.25
The claims of inadequate ballast in violation of § 213.103 are equally unfounded.
There is no evidence that the track was out of compliance with the regulation prior to the
time it was damaged by Cimarron’s truck. The regulation requires ballast sufficient to
support “the load of the track and the rolling equipment” and to restrain track movement
“under dynamic loads imposed by railroad rolling equipment”— that is, the ballast must
be adequate to safely allow trains to run on the tracks. The evidence shows, prior to the

The Intervenors’ attempt to supply evidence of such an effect again illustrates a recurrent lack of care
and candor. The Intervenors present the report of Blackwell, who found evidence from a passenger’s
photograph that there was “pooling water” at the scene “[o]nly a few days after the derailment.” In fact,
the photograph was taken several months later, as th passenger freely acknowledged in her 2017 deposition
that she took the photo months after the accident, a fact confirmed in the digital photo’s metadata.
25

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impact by Cimarron’s truck, this section of the BNSF track was routinely and safely
crossed by trains. Measurements taken after the accident by BNSF show no problem with
the ballast, and NTSB investigator Hipskind examined the scene and noted no exception
to those measurements. The railroad roadbed and track structure was properly
performing the function for which it was intended.26
The court finds summary judgment is appropriate as to the contention that BNSF
violated an internal policy for CWR track, adopted pursuant to §§ 213.118-19. The
Intervenors claim such violation occurred, but present no evidence of what BNSF’s
internal policy actually provides, or explain how it was violated. Instead, Intervenors
simply present a conclusory opinion from Blackwell, who simply asserts his opinion on
what the BNSF policy on CWR ought to have been.
The track where the derailment occurred was not CWR. In this area, only two
curved sections of track employ CWR. All the admissible evidence before the court
establishes that, some months prior to the accident, some spot resurfacing work had been
done on the ballast in the general region. There is no evidence that the resurfacing
occurred at or even near the CWR curves. Because Intervenors have failed to show BNSF
violated any CWR regulations, rules or plans, summary judgment is appropriate. Section
213.9 permitted a 60 mile-per-hour maximum speed for this section of the track, and any

In attempt to oppose this conclusion, Intervenors cite a 2014 grant request from the City of Augusta,
Kansas, asking for money for track rehabilitation. (Resp. ¶ 92). The cited evidence does not controvert the
evidence that the ballast at the scene of the accident was adequate. The request asks for funding for the
installation of CWR somewhere along the BNSF subdivision, but there is no indication that the request
included the area of the accident. Moreover, the request asks for CWR to replace some sections of joined
track replacement, but makes no suggestion that track ballast in the area was inadequate.
26

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attempt to impose duty of care to impose a different speed limited is preempted. See
Murrell, 544 F.Supp.2d at 1150-51.
Even if BNSF somehow violated any provision in Part 213, the court finds that
such violation was not the actual cause of the derailment within the meaning of Kansas
law. See Rhoten v. Dickson, 290 Kan. 92, 223 P.3d 786, 801 (2010) (“the plaintiff must
produce evidence that ‘affords a reasonable basis for the conclusion that it is more likely
than not that the conduct of the defendant was a cause in fact of the result’”) (quoting and
adding emphasis to Yount v. Deibert, 282 Kan. 619, 628, 147 P.3d 1065 (quoting Prosser &
Keeton on Torts § 41, pp. 269–70 (5th ed. 1984))). Here, there is simply no proof that
standard joined track, supported by compliant ballast, on a roadway with compliant
drainage, would not have misaligned when struck by a runaway thirteen-ton truck. Even
if there were some deficiency in the ballast or drainage (and there is not), it played no
causal role in the accident – the train would have derailed anyway.
Similarly, even assuming that that there had been some resurfacing work on the
two CWR curves, speed restrictions would arise only if BNSF failed to properly restore
the ballast. But if BSNF had complied with its CWR policy and restored the ballast, no
additional speed restriction would apply. The Amtrak train would still have been
travelling at 60 miles per hour, and would still have derailed.
Finally, the court finds summary judgment is proper because Cimarron and the
Intervenors have failed to show that any supposed violations of Part 213 by BNSF were
the proximate cause of the accident. Under Kansas law, “[t]o prove legal causation, the
plaintiff must show it was foreseeable that the defendant's conduct might create a risk of
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harm to the victim and that the result of that conduct and contributing causes was
foreseeable.” Drouhard-Nordhus v. Rosenquist, 301 Kan. 618, 623, 345 P.3d 281 (2015). Put
another way, proximate cause is
the cause that in a natural and continuous sequence, unbroken by any
superseding cause, both produced the injury and was necessary for the
injury. The injury must be the natural and probable consequence of the
wrongful act. Individuals are not responsible for all possible consequences
of their negligence, but only those consequences that are probable according
to ordinary and usual experience.
Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438 (2008) (citations omitted, emphasis in Hale).
See also Castleberry v. Debrot, 424 P.3d 495, 505 (Kan. 2018); Wilcheck v. Doonan Truck &
Equipment, Inc., 220 Kan. 230, 552 P.2d 938, 942–43 (1976)).
The issue of proximate cause typically presents a question of fact for the
jury. Hale v. Brown, 287 Kan. 320, 324, 197 P.3d 438 (2008); Zimmerman v.
Brown, 49 Kan. App. 2d 143, 157-58, 306 P.3d 306 (2013). But a district court
may decide causation against a plaintiff on summary judgment if the
evidence permits no reasonable inference that could support proximate
cause. Siruta v. Siruta, 301 Kan. 757, 767, 348 P.3d 549 (2015).
Montgomery v. Saleh, 55 Kan. App. 2d 429, 453, 419 P.3d 8, 25 (2018).
That is, while Kansas law prefers that the jury resolve “questions of negligence,”
this preference “is simply the general rule,” and does not preclude summary judgment
where the facts are uncontested. See England v. Cox, No. 11-2362-JTM, 2012 WL 3234438,
at *3 (D. Kan. Aug. 6, 2012) (granting summary judgment as to issues of negligence per se
or proximate cause) (emphasis in original). See also Saviour v. Revco Discount Drug Ctrs.,
126 F.R.D. 569, 571 (D. Kan. 1989) (“plaintiff's inability to produce evidence regarding

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proximate cause warrants summary judgment for defendant”); Schenck v. Thompson, 201
Kan. 608, 443 P.2d 298, 306 (1968).27
Related to the concept of proximate cause is that of superseding or interving
causation:
When negligence appears merely to have brought about a condition of
affairs or a situation in which another and entirely independent and
efficient agency intervenes to cause the injury, the latter is to be deemed the
direct and proximate cause and the former only the indirect or remote
cause.
George v. Breising, 206 Kan. 221, 227, 477 P.2d 983 (1970).
Here, the derailment of the Amtrak train was not proximately caused by any
(hypothetical) BSNF violation of Part 213 track standards because the misalignment was
actually caused by an intervening force which Part 213 was not intended to regulate. As
indicated earlier, the track railway ballast standard is explicitly designed to ensure the
track will support the load of railway rolling stock. Similarly, both ballast and drainage
requirements serve to promote safe rail travel. See Nickels v. Grand Trunk Western, R.R.,
560 F.3d 426, 428 (6th Cir. 2009).

To the extent Cimarron or Inteervenors couch their claims against plaintiffs as violations of negligenece
per se, that doctrine also incorporates requirements that the evil complained of by the party advocating
application of the doctrine be the type of harm the statute or rule was intended to protect against. “To
establish a claim of negligence per se, plaintiff must show that (1) defendant violated a statute, ordinance
or regulation; (2) the statute was adopted to protect the class of persons in which plaintiff is included and
to protect against the type of harm which occurred as a result of its violation; and (3) the alleged violation
was the proximate cause of plaintiff's injury.” Holler v. Cinemark USA, Inc., 185 F. Supp. 2d 1242, 1243 (D.
Kan. 2002). Here, the accident was caused by the Cimarron truck strike, which is not the type of injury
which the federal regulations were intended to prevent.
27

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The CWR track provisions serve to ensure safe travel by trains over CWR track
when the roadway has been resurfaced. CWR track is given special treatment because of
its unique characteristics. See “Track Safety Standards,” 63 Fed.Reg. 33994-01, 1998 WL
323079, at *33994 (Oct. 11, 2006) (“CWR is naturally subjected to high compressive and
tensile forces which, if not adequately restrained, can result in track buckling or pullaparts”). As a result, the rules require that railroads develop “procedures which control
train speed on CWR track.” § 213.119(e) (emphasis added).
Here, the accident did not arise because of a defect with any CWR track. The
accident arose because a grain truck struck and deformed jointed rail track which, by
coincidence, was located in the same area as CWR track.
The provisions of Part 213 cited by Intervenors, including ballast, drainage, and
CWR regulations, were not designed to prevent damage to tracks caused by the
intervening acts of negligent third parties such as that presented in the present action.
Because Intervenors have failed to present reliable evidence that BNSF violated
any unpreempted duty of care established by or pursuant to Part 213, the court also
grants summary judgment as to the claims BNSF acted recklessly.
Finally, BNSF argues that Intervenors’ claims, to the extent that they rest on
Loumiet’s opinion that the track road bed should have been constructed differently—as
to grade, roadbed, or ballast—are preempted under the Interstate Commerce
Commission Termination Act of 1995 (ICCTA), 49 § U.S.C. 10101 et seq.
The ICCTA, created the Surface Transportation Board (STB) to regulate rail
transportation in the United States. 49 U.S.C. § 10501(a)(1) (2016). The STB has “exclusive
105

jurisdiction to regulate ‘transportation by rail carriers’ and ‘the construction, acquisition,
operation, abandonment, or discontinuance’ of rail facilities ... with the instruction that
the agency ‘ensure the development and continuation of a sound rail transportation
system.’” City of South Bend v. Surface Transp. Bd., 566 F.3d 1166, 1168 (D.C. Cir. 2009). The
ICCTA provides remedies that “are exclusive and preempt the remedies provided under
Federal or State law.” 49 U.S.C. § 10501(b).
The premeemption under the ICCTA is broad; the Act “preempts all state laws
that may reasonably be said to have the effect of managing or governing rail
transportation, while permitting the continued application of laws having a more remote
or incidental effect on rail transportation.” Adrian & Blissfield R. Co. v. Village of Blissfield,
550 F.3d 533, 539 (6th Cir. 2008). See State v. BNSF Ry. Co., 2018 WL 5726512, *5-6 (Kan.
Ct. App. Nov. 2, 2018) (holdiing the ICCTA preempts Kansas law, K.S.A. 66-273,
regulating amount of time standing train might block crossing).
The Act “preempts ‘state laws that may reasonably be said to have the effect of
managing or governing rail transportation, while permitting the continued application
of laws having a more remote or incidental effect on rail transportation.’” N.Y.
Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007) (quoting Fla. E. Coast
Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th Cir. 2001)). A state regulation
does not manage or govern rail transportion, and thus is not preempted by the ICCTA,
so long as “(1) the law must not discriminate against rail carriage; and (2) the law must
not unreasonably burden rail carriage.” Diehl v. CSX Transp., 2018 WL 4705781. *5-6 (W.D.
Pa. Oct. 1, 2018).
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Generally-applicable state tort laws, such as negligence or nuisance, do not target
railroads, and thus survive “the first prong of the ICCTA,” but are preempted under the
second if the remedy would bar the railroad from “undergo[ing] specific construction
projects related to its rail operations.” Id. at *5 (finding negligence and nuisance claims
arising from derailment preempted). In contrast, “[a] typical negligence claim seeking
damages for a typical crossing accident ... does not directly attempt to manage or govern
a railroad's decisions in the economic realm.” Elam v. Kansas City S. Ry. Co., 635 F.3d 796,
803–04 (5th Cir. 2011).
The claims relating to the design and construction of BNSF’s track roadway are
not narrowly-tailored allegations relating to one location; they are broadly-applicable
design claims which would require reworking track roadways throughout Kansas in
order to render them able to deflect impacts such as that caused by the runaway Cimarron
truck. The uncontroverted evidence establishes that such redesign and reworking would
cause a substantial economic effect on BNSF. Accordingly, these claims are preempted
under the ICCTA. See Union Pac. Ry. Co. v. Taylor Truck Line, 2018 WL 1750516, *7-8 (W.D.
La. April 10, 2018) (ICCTA preempted claims relating to “the design of the railroad tracks
and crossing” which would require “considerable redesign and reconstruction work,” to
correct).
In light of the uncontroverted evidence, only one party is potentially liable for the
damages arising from the derailment — Cimarron.

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Supplemental Matters
The court first addresses the plaintiffs’ motion for summary judgment on the issue
of a joint venture. Cimarron’s claim that Amtrak and BSNF were involved in a joint
venture requires proof of “(1) an agreement; (2) a common purpose; (3) a community of
interest; and (4) an equal right to a voice accompanied by an equal right of control over
the instrumentality causing the injury.” Cullip ex rel. Pitts v. Domann ex rel. Domann, 266
Kan. 550, 556–57, 972 P.2d 776, 782 (1999) (citing Gragg v. Wichita State Univ., 261 Kan.
1037, 1050, 934 P.2d 121, 131 (1997)). A second party has a right of control an
instrumentality if “there is an understanding between the parties that [that party] has the
right and is possessed of equal authority to prescribe conditions of use and operation.”
Scott v. McGaugh, 211 Kan. 323, Syl. ¶ 4, 506 P.2d 1155 (1973). Factors supporting a
determination of joint enterprise include:
(1) the joint ownership and control of property; (2) the sharing of expenses,
profits and losses, and having and exercising some voice in determining the
division of the net earnings; (3) a community of control over and active
participation in the management and direction of the business enterprise;
(4) the intention of the parties, express or implied; and (5) the fixing of
salaries by joint agreement.
Modern Air Conditioning v. Cinderella Homes, 226 Kan. 70, 596 P.2d 816, 823 (1979).
The court finds that the uncontroverted facts fail to establish any grounds for
concluding that Amtrak and BNSF were involved in a joint venture at the time of the
derailment. In its response to the plaitniffs’ motion for summary judgment, Cimarron
points to no circumstances which would support such a finding. Rather, it complains that
the decision of the Magistrate Judge (Dkt. 359) denying its motion to compel production
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of the Operating Agreement between Amtrak and BSNF prevented it from obtaining such
information. This decision, it alleges, “has frustrated all efforts to establish the joint
venture defense.” (Dkt. 408, at 10).
This argument lacks merit. The Magistrate Judge denied the motion to compel on
March 1, 2018, over two months before plaintiffs moved for summary judgment on the
joint venture defense. The Magistrate Judge found that Cimarron’s December 29, 2017
motion to compel (Dkt. 304) was untimely. (Dkt. 359, at 4). The court noted that Cimarron
had not previously moved to compel after plaintiffs objected to its request for production
under D.K.an.R. 37.1(b). In addition, the Magistrate Judge noted other reasons for
declining the motion to compel:
Cimarron’s request for production of the Operating Agreement between
BNSF and Amtrak is not proportional to the needs of this case. Cimarron
claims the Operating Agreement is needed to establish its defense that
BNSF and Amtrak were operating as a joint venture for purposes of
comparing their fault against Cimarron. However, given the proprietary
and confidential nature of the information contained in the Operating
Agreement, along with the amount of information in the Operating
Agreement that would not be relevant to Cimarron’s alleged defense, the
Court finds there are less burdensome and more efficient ways for
Cimarron to discover information applicable to its joint venture affirmative
defense.
Id.
Consistent with this history, Cimarron responded to the ruling by inaction. It filed
no objection or appeal the Order of the Magistrate Judge. There is no indication that
Cimarron undertook alternative means of discovery to support its claim of joint venture.
Instead, it waited until after the plaintiffs moved for summary judgment on the joint
venture issue to assert error on the part of the Magistrate Judge as to timeliness, stating
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that it “fails to see what less burdensome methods of discovery were available.” (Dkt.
408, at 15).
A party may object to the decisions of a Magistrate Judge, but “may not assign as
error a defect in the order not timely objected to.” Fed.R.Civ.Pr. 72(a). Even if Cimarron’s
current timeliness arguments were not themselves untimely, the court finds no grounds
for concluding that the Magistrate Judge’s decision was an abuse of discretion. The
decision rests on an assessment of the history of the case, and the court finds the
Magistrate Judge’s decision as to timeliness was fair and appropriate. Further,
Cimarron’s alternative discovery argument lacks merit, as it focuses solely on the burden
of such discovery to Cimarron. Cimarron ignores the Magistrate Judge’s conclusion that
the Operating Agreement incorporates proprietary and confidentialy information
belonging to Amtrak and BNSF to which Cimarron was not entitled.
The court finds that plaintiffs are entitled to summary judgment on the joint
venture defense.
Next, the court denies plaitniffs’ motion seeking to strike the addition of the
defective headlight claims (Dkt. 468). The court is not unsympathetic to Amtrak’s
complaint regarding the last-minute addition of the two headlight related claims to the
Pretrial Order, particularly given the Intervenors’ previous representation that they were
not making any claims the locomotive headlight was defective. However, the Magistrate
Judge has discretion to resolve discovery and pre-trial issues, did so in a thorough and
appropriate fashion, and her conclusion was not contrary to law. See Punt v. Kelly Servs.,
862 F.3d 1040, 1047 (10th Cir. 2017). Having reviewed the entire history of the action, the
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court finds the Magistrate Judge properly excercised her discretion, and reached a
conclusion consistent with the law. See Jensen v. Solvay Chemicals, Inc., 520 F. Supp. 2d
1349, 1351 (D. Wyo. 2007).
Finally, while the court grants plaintiffs’ motions to strike certain expert opinions
presented in opposition to the motions for summary judgment, it declines the request
that the court sanction the Intervenors pursuant to Fed.R.Civ.P.56(h). The pattern of
Intervenors’ actions in presenting undisclosed expert opinions is certainly disturbing and
presents a very close question. As this court has noted, however, courts rarely authorize
affirmative sanctions under Rule 56(h). See Christenson Media Grp., Inc. v. Lang Indus., Inc.,
No. 10-2505-JTM, 2012 WL 3024707, at *5 (D. Kan. July 24, 2012) (citing Burdett v. Harrah's
Kan. Casino Corp., No. 02–2166, 2003 WL 124665, at *2 (D.Kan. Jan. 12, 2002)). In the present
case, the court does not find that the cited opinions were submitted in a bad faith, and
finds no sanction warranted beyond their exclusion.
The matter accordingly proceeds to trial on liability as to plaintiffs’ claims against
Cimarron of negligence and gross negligence, trespass, and recklessness under K.S.A. §
21-5809 (Dkt. 461, at 15, ¶ 1-3), and Intervenors’ claims of negligence against Cimarron.
(Id. 461, at 20 ¶1, 2). The present ruling renders moot some of the remaining pretrial
motions; the court will address these by separate order. The existing deadline for motions
in limine and proposed jury instructions (Dkt. 519) is extended to November 20, and the
response deadline to November 26; the parties shall submit revised witness and exhibit
lists which take account of this ruling no later than November 23, 2018.

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IT IS ACCORDINGLY ORDERED this 14th day of November, 2018, that the court
hereby grants plaintiffs’ Motions for Summary Judgment (Dkt. 398, 400, 402, 463) and
Motions to Strike (Dkt. 432, 436, 438, 478, 480), except that the court denies the request to
impose sanctions and for hearing; the court grants the motions of plaintiff BNSF (Dkt.
464) and Intervenors (Dkt. 472) to file video exhibits conventionally, and denies plaintiff’s
Motion for Review (Dkt. 468). The joint motion for extension of time (Dkt. 504) is granted.

s/ J. Thomas Marten
J. Thomas Marten, Judge

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