Weatherwax v. BNSF Railway Company

Filing 64

MEMORANDUM AND ORDER - The defendant's motion in limine 53 is denied without prejudice to its reassertion during the pretrial conference which will be held in chambers on the first day of trial. Ordered by Judge Richard G. Kopf. (KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFFREY A. WEATHERWAX,
Plaintiff,
v.
BNSF RAILWAY COMPANY, a
Delaware corporation,
Defendant.

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4:10CV3025

MEMORANDUM
AND ORDER

This is a lawsuit brought pursuant to the Federal Employers’ Liability Act, 45
U.S.C. §§ 51-60, as a result of injuries suffered by plaintiff Jeffrey A. Weatherwax
when he slipped and fell in the BNSF Railway Company parking lot on his way to
work as a BNSF locomotive engineer. Weatherwax alleges that his injuries resulted
from BNSF’s failure to “use reasonable care in the design, construction, inspection,
and maintenance of its parking lot provided for use by its employees”; “use
reasonable care to clear and clean the parking lot of ice and snow”; and “provide
reasonably safe routes in and out of the parking lot.” (Filing 1, Complaint ¶ 9.)
Pending before the court is defendant BNSF’s motion in limine (filing 53)
challenging the admissibility of the “testimony in its entirety” of Plaintiff’s expert
witness, Warren C. Vander Helm, “regarding the configuration and maintenance of
the parking lot including their relationship to causation of the alleged accident and
injuries.” (Filing 53; Filing 54 at CM/ECF p. 1-2 (citing Daubert v. Merrell Dow
Phams., Inc., 509 U.S. 579 (1993).) Specifically, Defendant claims Vander Helm’s
testimony is inadmissible under Fed. R. Evid. 401, 402, 403, and 702 because his
conclusions “are based on speculation, lack foundation and lack first[-] hand
knowledge of the condition and maintenance of the parking lot at the time of the

alleged accident.” (Filing 54 at CM/ECF p. 1.) Neither party has requested a hearing
on the motion in limine.
Vander Helm is the managing partner of Parking Design Group, LLP, and
holds a bachelor of arts degree in construction management. He has over 30 years of
experience in parking design, operations, and planning, including providing parkingdesign consultation to contractors, architects, developers, commercial property
owners, and municipalities throughout the country. (Filing 55-2 at CM/ECF p. 1.)
Vander Helm’s expert report states: “In my opinion, two factors contributed directly
to the injury of Mr. Weatherwax: a poor and unsafe parking area configuration and
neglect of maintenance of same.” (Filing 55-2 at CM/ECF p. 2.)
BNSF points out that in preparing his report and arriving at his conclusions,
Vander Helm reviewed only a Google Earth photograph of the parking lot,
Defendant’s answers to Plaintiff’s interrogatories, Plaintiff’s deposition, and he
personally inspected the parking lot. He was not provided, nor did he have any,
information as to the presence of snow or ice in the parking lot at the time of the
accident. (Filing 55-3, Vander Helm Dep. 93:13-18, 94:6-9, 97:17-19.) Vander Helm
was not provided, nor did he have any, information regarding what the plaintiff was
wearing, where he was walking, or what he was carrying at the time of the alleged
accident. (Id. at 105:1-4.) He did not speak to the plaintiff regarding the condition
of the parking lot at the time of the alleged accident. (Id. at 96:4-9.) He did not
review, nor was he aware of, BNSF’s policies or procedures for snow and ice removal
from the parking lot prior to the alleged accident. (Id. at 91:14-19, 92:17-23.)
Vander Helm did not know if the parking lot had been salted, sanded, or otherwise
treated. (Id. at 95:3-6.) Finally, he does not recall if he reviewed any state statutes,
local codes, or standards regarding the configuration of the parking lot. (Id. at
57:6-58:17.)

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Plaintiff argues that Vander Helm’s testimony is not “complex, scientific
evidence,” but “involves nothing more than a simple opinion about parking lot
configuration”—that is, “that the configuration and design implemented by Defendant
is contrary to the basic, elemental configuration and design that should have been
used, and that Defendant should have known that this configuration and design posed
risks, and could and should have mitigated those risks.” (Filing 59 at CM/ECF pp.
6 & 8.) However, and as noted above, Vander Helm also renders an opinion
regarding causation. (Filing 55-2 at CM/ECF p. 2 (configuration and neglect of
BNSF’s parking lot “contributed directly” to Plaintiff’s injury).)
Defendant BNSF’s objections to Vander Helm’s testimony focus on what
information Vander Helm did not have or what he did not know before he rendered
his opinions. Thus, BNSF challenges the lack of factual basis and foundation for
Vander Helm’s opinions, not their evidentiary reliability or admissibility. Marvin
Lumber & Cedar Co. v. PPG Indus., Inc., 401 F.3d 901, 916 (8th Cir. 2005) (“even
post- Daubert, the factual basis of an expert opinion goes to the credibility of the
testimony, not the admissibility” (internal quotation & citation omitted)). To the
extent BNSF’s complaints about the insufficient basis for Vander Helm’s opinions
are well-founded, “they go to the weight to be accorded his opinions by the jury.” Id.
Therefore, BNSF’s objections to Vander Helm’s testimony are ones that can be
effectively addressed on cross-examination and with the presentation of contrary
evidence from its own experts.
Daubert, 509 U.S. at 596 (“Vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.”).
In short, because I do not understand BNSF’s evidentiary objections to Vander
Helm’s testimony to raise any Daubert issues, I decline to make an evidentiary ruling
at this time. Instead, the admissibility of Vander Helm’s testimony shall be
considered and resolved at trial based upon the evidence presented to the jury.
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Accordingly,
IT IS ORDERED that the defendant’s motion in limine (filing 53) is denied
without prejudice to its reassertion during the pretrial conference which will be held
in chambers on the first day of trial.
DATED this 22nd day of June, 2011.
BY THE COURT:
s/ Richard G. Kopf
United States District Judge

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