Madden v. Antonov et al

Filing 264

ORDER granting in part and denying in part BNSF's motions in limine (filings 199 , 202 , 205 , and 208 ) are each granted in part and denied in part, as set forth above. Ordered by Judge John M. Gerrard. (NMW)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RONALD D. MADDEN,
Plaintiff,

4:12-CV-3090

vs.
MEMORANDUM AND ORDER
ANTON ANTONOV & AV
TRANSPORTATION, INC., and
BNSF RAILWAY COMPANY,
Defendants.
This matter is before the Court on several motions in limine filed by
defendant BNSF Railway Company. Filings 199, 202, 205, and 208. The facts
underlying this dispute are discussed separately in the Court's accompanying
Memorandum and Order denying BNSF's motion for summary judgment. For
the reasons discussed below, each of BNSF's motions will be granted in part
and denied in part.
I. STANDARD OF REVIEW
BNSF has moved to limit or exclude the testimony of several of plaintiff
Ronald D. Madden's expert witnesses, as well as the testimony of one lay
witness. The opinion of a qualified expert witness is admissible if (1) it is
based on sufficient facts or data, (2) it is the product of reliable principles and
methods, and (3) the expert has reliably applied the principles and methods
to the facts of the case. Fed. R. Evid. 702. The expert's scientific, technical, or
specialized knowledge must also assist the trier of fact to understand the
evidence or determine a fact in issue. Id. The Court acts as a gatekeeper,
ensuring that any expert testimony or evidence is not only relevant, but
reliable. Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012).
When determining the reliability of an expert's opinion, the Court
examines the four following non-exclusive factors: (1) whether the theory or
technique applied can be tested, (2) whether the theory or technique has been
subject to peer review or publication, (3) the known or potential rate of error,
and (4) whether it is accepted in the relevant discipline. Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 593–95 (1993). These factors are not
exhaustive or limiting, and the Court must use the factors as it deems

appropriate to the facts of each case. Presley v. Lakewood Eng'g and Mfg. Co.,
553 F.3d 638, 644 (8th Cir. 2009). In addition, the Court can weigh whether
the expertise was developed for litigation or naturally flowed from the
expert's research; whether the proposed expert ruled out other alternative
explanations; and whether the proposed expert sufficiently connected the
proposed testimony with the facts of the case. Id. The standard for judging
reliability is lower than the merits standard of correctness. Kuhn, 686 F.3d at
625. And "[v]igorous 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." Daubert, 509
U.S. at 596.
Lay opinions are governed by Fed. R. Evid. 701. Under Rule 701, lay
opinion cannot be based on scientific, technical, or other specialized
knowledge within the scope of Rule 702. Fed. R. Evid. 701(c). In other words,
lay testimony "results from a process of reasoning familiar in everyday life,”
as opposed to "a process of reasoning which can be mastered only by
specialists in the field.” Fed. R. Evid. 701 Adv. Comm. Notes. Otherwise, to be
admissible, a lay opinion need only be (1) rationally based on the witness's
perception and (2) helpful to clearly understanding the witness's testimony or
to determining a fact in issue. Fed. R. Evid. 701.
II. ANALYSIS
A. Loumiet
Madden's first expert witness is James R. Loumiet, an engineer with
experience in, among other things, train accident reconstruction. Loumiet
would testify that the County Road 429 ("CR 429") crossing was extrahazardous, based on several factors, and that BNSF should have taken
certain remedial steps to enhance safety at the crossing. BNSF argues that
Loumiet's testimony should be excluded because, among other things, (1) it
rests upon theories precluded by the Federal Railroad Safety Act (FRSA), 49
U.S.C. § 20101, et seq.; (2) Loumiet is not qualified to render an opinion on
the design of a grade crossing; and (3) various reasons that Loumiet has
given for his opinion that the crossing was hazardous are irrelevant and lack
sufficient foundation. With a handful of exceptions, the Court finds BNSF's
arguments to be unpersuasive.
BNSF's first two arguments are quickly resolved. First, for the reasons
explained in the Court's accompanying Memorandum and Order denying
BNSF's motion for summary judgment, FRSA has no preclusive effect in this
case. BNSF's second argument is that Loumiet is unqualified because he is
not a licensed professional engineer with experience in traffic engineering. As
support, BNSF points to the opinion of its expert, Joseph D. Blaschke (who
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happens to be a traffic engineer). However, Rule 702 does not require that
one party's expert be of the identical specialty as the other party's expert.
Robinson v. GEICO General Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006).
Instead, Rule 702 only requires that an expert possess the knowledge, skill,
experience, training, or education sufficient to assist the trier of fact, which is
satisfied where expert testimony advances the trier of fact's understanding to
any degree. Id. The Court finds that Loumiet's experience in train accident
reconstruction qualifies him to express an opinion as to whether and why the
CR 429 crossing was hazardous.
BNSF's remaining arguments are, for the most part, iterations on a
theme: that the specific reasons Loumiet gave for concluding that the CR 429
crossing was hazardous are irrelevant or not supported by sufficient
foundation. Loumiet explained that, in his opinion, the following factors
rendered the crossing exceptionally dangerous: (1) the presence of two sets of
main line tracks; (2) "unusually restricted sight distance" caused by the
crossing's geometry; (3) a high volume of train traffic; (4) increased traffic at
the crossing, and in particular, its use by heavy vehicles such as defendant
Anton Antonov's tractor-trailer; (5) use of the crossing by high-speed trains;
(6) the "[s]teep and humped" profile of the crossing and its "rough and
uneven" surface; and (7) the lack of active warning devices at the crossing.
Filing 198-5 at 156–58.
The Court has examined each of BNSF's arguments as to these factors,
but finds it unnecessary to discuss all of them. It is not that BNSF's
arguments are entirely lacking in merit or persuasive value. For example,
Loumiet explained that the presence of two tracks made the crossing more
dangerous because a train on the near track could potentially obscure a
motorist's view of a train on the second track. As BNSF points out, this
explanation is not tied to the facts of this case—on the current record, it does
not appear that the first train actually obscured Antonov's view of Madden's
train. But BNSF's remaining arguments, while not entirely unpersuasive, do
not fatally undermine the reliability of Loumiet's methodology or opinion.
The Court will provide two examples.
First, BNSF disputes the methodology Loumiet utilized to measure the
angle of the crossing that Antonov would have perceived. BNSF argues that
Antonov had "unlimited sight distance" when he was driving on Highway 2,
which paralleled the tracks. But that has no bearing on Loumiet's
measurements of the angle a driver would perceive when stopped in front of
the tracks. BNSF next points to an excerpt from Antonov's deposition which,
BNSF claims, would show that Antonov had an opportunity to "square up"
his truck with the tracks. Filing 203 at 15–16 (citing Antonov deposition at
79–80). But the deposition transcript provided by BNSF is lacking pages 79
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and 80. See 198-5 at 66–67. BNSF also attacks Loumiet's assumption that
Antonov's truck would have been parallel with CR 429. But that appears to
be a reasonable assumption to the Court, and BNSF has not produced any
evidence to suggest otherwise.
Second, BNSF objects to Loumiet's reliance on certain figures from the
U.S. Department of Transportation, which he used in determining the
average number of trains that pass through the crossing each day. BNSF
correctly asserts that data which was compiled by states to comply with the
Federal Highway Administration's crossing program is inadmissible for any
purpose, including as the basis for an expert's opinion. See, 23 U.S.C. § 409;
Lusby v. Union Pac. R. Co., 4 F.3d 639, 641 (8th Cir. 1993). Assuming that
these figures do fall within § 409—which BNSF has claimed, but not shown—
the objection is nonetheless moot. As BNSF admits, Loumiet obtained similar
traffic figures from an admissible source: the testimony of BNSF employee
Mark Craney. See filing 203 at 21.
In sum, BNSF has not convinced the Court that Loumiet's
methodology, reasoning, data, or assumptions are so unreliable as to render
his opinion unhelpful to the jury. And as a general rule, the factual basis for
an expert's opinion goes to the credibility of his testimony, not the
admissibility. Synergetics, Inc. v. Hurst, 477 F.3d 949, 955 (8th Cir. 2007).
BNSF's critiques of Loumiet's opinion and reasoning can be adequately
deployed in cross-examination. See id.
BNSF has also objected to Loumiet's proposed testimony that BNSF
should have implemented certain remedial measures at the crossing, and
that such measures could have prevented the collision with Antonov's truck.
See filing 198-5 at 6. Loumiet opined that BNSF should have (1) closed the
crossing; (2) installed flashing light signals and automatic crossing gates; (3)
stationed flaggers at the crossing; (4) realigned the approaches to the crossing
to be perpendicular with the tracks; (5) leveled the approaches; and (6)
repaired the crossing surface. The Court finds merit to some, but not all, of
BNSF's objections on this point.
As to the first remedial measure, BNSF had produced evidence that it
lacked the authority to close the crossing. Loumiet admitted in his deposition
it is up to the State of Nebraska to approve any crossing closure. Filing 198-5
at 134. Madden has not produced evidence to the contrary. And there is no
evidence that BNSF had authority over public roads such that it could have
closed CR 429. BNSF cannot be found negligent for failing to do something it
could not have done. Therefore, this proposed remedial measure lacks

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relevance, and Loumiet will be prohibited from testifying that BNSF should
have closed the crossing.1
Similarly, as to the fourth and fifth remedial measures, BNSF argues
that it lacked the authority to realign and level the approaches to the
crossing, i.e., CR 429. Loumiet admitted that the county government bears
responsibility for making changes to CR 429. Filing 198-5 at 136–37. Madden
has presented no evidence to the contrary. Therefore, Loumiet will be
prohibited from testifying that BNSF should have levelled or realigned the
approaches to the crossing.2
BNSF's arguments with regard to the second and third remedial
measures—installing lights or gates, or using flaggers—are less persuasive.
As discussed above, FRSA does not preclude Madden from arguing that
BNSF should have taken such precautions. BNSF also asserts that under
Packard v. Darveau, 759 F.3d 897, 903 (8th Cir. 2014), it had no duty to flag
the crossing with human flaggers because that would amount a duty to
regulate traffic on public roadways. The Court has addressed this argument
in its Memorandum and Order denying BNSF's motion for summary
judgment. Briefly stated, the Court is not convinced. It is not disputed that, if
the crossing was sufficiently hazardous, then BNSF had a duty to provide
lights or gates. In other words, under certain circumstances, BNSF already
had a duty to control traffic at the crossing. Whether BNSF bears such a duty
does not turn on the means it might employ to fulfill the duty.3
Madden counters that BNSF should have petitioned the relevant government authority to
close the crossing. The Court need not decide if the law imposes such a duty, because
Madden has produced no evidence to suggest that such a petition would have resulted in
the crossing being closed. Rather, the evidence shows that BNSF advocated for closing the
crossing, but faced opposition from local authorities. See, e.g., filing 228-3 at 34; filing 228-1
at 85–86.
1

This is not to say that Loumiet will be prohibited from testifying that the nature of the
crossing's approaches contributed to its hazardous nature. See filing 198-5 at 157. Factors
affecting crossing safety that were beyond BNSF's control, but of which BNSF knew or
should have known, are still relevant to determining any potential negligence.
2

In its motion, but not its brief, BNSF also objects to Loumiet's opinion that BNSF knew or
should have known of the hazardous nature of the crossing due to the construction
occurring at The Andersons' adjacent grain facility. BNSF asserts that this opinion lacks
foundation, is irrelevant, and improperly imposes upon BNSF the duty to control the
behavior of unrelated third parties. Filing 202 at 5. The Court is not persuaded. BNSF does
not identify what foundation is missing. The opinion is relevant; BNSF does not dispute
that it was aware of The Andersons' construction activity, and any knowledge by BNSF of
increased traffic at the crossing is relevant to whether BNSF should have foreseen an
accident at the crossing. And Packard only stands for the proposition that some private
parties have no duty to control traffic. As the Court has already explained, there are
3

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The Court will also permit Loumiet to testify that BNSF should have
repaired the crossing surface. The crossing surface may, or may not, have
been "rough and uneven," and this may, or may not, have resulted in some
additional delay in Antonov crossing the tracks. That remains a question of
fact for the jury to determine. But if the jury finds that the rough surface
contributed to the collision, they are entitled to consider whether repairing
the surface might have helped avoid or mitigate the collision. In sum,
Loumiet may opine that BNSF should have provided gates or lights, or
flagged the crossing, or that it should have repaired the crossing surface (all
subject to cross-examination); but he may not testify that BNSF should have
closed the crossing or re-aligned or leveled the approaches.
Finally, BNSF has moved to exclude Loumiet's opinion that BNSF
knew or should have known of the hazards presented by the CR 429 crossing
based on an unrelated May 6, 2007 train collision near Ansley, Nebraska (a
town about 40 miles southeast of Anselmo). That collision also involved a
large truck and occurred on the same rail line. And according to Loumiet,
that crossing also had an acute crossing angle that restricted the truck
driver's ability to see an oncoming train. Filing 198-5 at 159.
Evidence of other accidents may be relevant to showing a defendant's
notice of danger, but only if the proponent of the evidence shows that the
other accident was substantially similar. See Drabik v. Stanley-Bostitch, Inc.,
997 F.2d 496, 508 (8th Cir. 1993). BNSF contends that Madden has failed to
show the May 2007 accident occurred under substantially similar
circumstances. Based on the current record, the Court would reach the same
conclusion. Before the Court can determine if the previous collision was
substantially similar, it needs more information regarding the circumstances
of the collision. More specifically, the Court needs some evidence that the
acute crossing angle bore some causal relationship to the prior accident, and
that it was not the result of other, unrelated variables. BNSF further
contends that, having failed to show substantial similarity at this time,
Madden should be precluded from doing so at trial. The Court disagrees. It is
not possible to pre-adjudicate every single aspect of this case before trial has
even begun. It is Madden's burden to prove substantial similarity, but he will
be given an opportunity to do so at trial.
B. Wilson
Madden's next expert is Marc B. Wilson, an engineer and ergonomist.
Wilson has submitted a report stating, and would testify to the effect that,
reasons to doubt Packard's applicability to railroads, when the hazards to be prevented are
taking place on the railroad's crossings.

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BNSF could and should have trained Madden how to respond to an imminent
grade crossing collision, and that if BNSF had done so, (1) Madden would not
have "froze" and panicked, and therefore (2) Madden would have been able to
assume a secure, braced position that would have reduced his injuries. Filing
198-5 at 101–05. Wilson also opines more generally that "training minimizes
injury." Filing 228-5 at 22; see also filing 198-5 at 105. The Court finds as
follows. Wilson will be permitted to testify that, with proper training,
Madden potentially would not have panicked. But Wilson will not be
permitted to testify that Madden would, in fact, have been able to assume a
safe position. Nor may Wilson offer his general opinion that "training
minimizes injury."
Wilson's opinion that Madden would have been able to assume a safe
position must be excluded because it is not based on sufficient facts or data,
and it does not result from any application of Wilson's expertise. See Fed. R.
Evid. 702. In his deposition, Wilson admitted that he is not familiar with the
layout of a train's cab. Filing 198-5 at 80–81. And Wilson admitted that
because he had not actually performed an analysis of the cab (ergonomic or
otherwise) he could not determine what a safe position would have been.
Filing 198-5 at 79–84. As the following exchange shows, Wilson lacked any
reliable data or basis upon which to express an opinion on Madden's ability to
assume a safe position:
Q [by BNSF's attorney]: And since you don't know where the
safest position would be, you're unable to tell us, with any degree
of reasonable scientific certainty, that it would have made a
difference on Mr. Madden's injuries in this case, to be in a
different position.
....
[WILSON]: Yeah. I don't know that answer because, first of all, I
wasn't even asked to look at it. I was asked to look at [whether
they] were . . . trained to do anything. And I was asked to look at
the facts; that the training officer says they don't train in this;
that the engineer said the conductor froze. That's all I was given
to look at.
Filing 198-5 at 82. Expert testimony must be based upon more than
subjective belief or unsupported speculation; rather, it must be supported by
"good grounds." Daubert, 509 U.S. at 590. This aspect of Wilson's testimony is
not based on good grounds and must be excluded.
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Wilson's broader opinion, that "training minimizes injuries" will also be
excluded. As a general matter, this proposition is no doubt true. But Wilson
has not sufficiently connected this proposition to the facts of this case. See
Presley, 553 F.3d at 644. As just discussed, Wilson has no basis to opine on
whether Madden's injuries could have been reduced. So, there is no reason to
believe that this general proposition actually applies to the facts of this case.
And without any real connection to the facts of this case, this opinion is too
broad to offer any assistance to the jury. For that matter, Wilson has not
conducted any testing or studies to determine the extent to which training
actually reduces injuries in the context of grade crossing collisions.
However, Wilson may testify that, with training, Madden potentially
would not have panicked (subject, of course, to cross-examination). Wilson's
experience qualifies him to render this opinion, and BNSF does not seriously
contend otherwise. Nor is this opinion subject to the same reliability
problems as Wilson's first opinion. But the relevance of this opinion depends
upon Madden producing evidence of two other matters: (1) that Madden could
have placed himself in a secured, braced position, such that he would not
have been thrown about the cab as severely; and (2) that he would have done
so, had he not panicked. If Madden produces such evidence, then Wilson's
opinion that, with training, Madden would not have panicked, would be
relevant and could assist the jury (subject to cross-examination).
C. Drs. Gonzales and Machanic
Madden's next expert witnesses are two of his treating physicians, Dr.
Kristen L. Gonzales, a general family physician, and Dr. Bennett I.
Machanic, a neurologist. They would testify, generally, that had Madden
been braced or otherwise been secured in his cab at the time of the accident,
he would have suffered less blunt force trauma from being hurled about the
cab and thus less severe injuries. Filing 198-5 at 181, 195.
BNSF asserts that both doctors' opinions are unreliable and should be
excluded, because they relied upon assumptions about the equipment in the
cab that do not reflect Madden's theory of the case. In their depositions, both
doctors admitted that they assumed Madden would be secured or braced with
a seatbelt. See filing 198-5 at 162–63, 187–88. But Madden concedes he is not
claiming that the cab should have been equipped with seatbelts. See filing
231 at 7. Instead, Madden is arguing that with a proper warning or better
training, he would not have panicked and would have been able to place his
body in a secure, braced position, and thereby avoided injury, like his fellow
occupant in the cab, Brad Tyree. Neither doctor is qualified to offer an
opinion as to the feasibility of this body-positioning theory. So, BNSF

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contends, their opinions should be excluded as unreliable and outside their
areas of expertise.
As with Wilson, the Court will grant BNSF's motion in part and deny it
in part. Doctors Gonzales and Machanic may not testify as to the feasibility
or efficacy of any safety maneuver Madden could have executed. But they are
qualified to offer their more general opinions that less blunt force results in
less physical trauma. There is nothing unreliable about this proposition. And
while the alleged cause of Madden's injuries is obvious—being hurled around
a train cab upon a sudden impact—the injuries are serious and varied
enough that these physicians' opinions will assist the jury.
D. Cantrell
BNSF's final challenge is to a lay witness of Madden's, Donald Cantrell.
Cantrell is a farmer who lives near the CR 429 crossing. Cantrell owns
several semi-tractor/trailers that he uses to carry grain, and he has
experience driving them across the CR 429 crossing. Cantrell would testify
that in his experience traversing the crossing from the south, its angle is such
that in order to see a train coming from the east, he has to move over to his
passenger seat. Cantrell would also testify that because the approach to the
crossing from the south is short, and CR 429 is narrow, it is difficult for a
large truck to "square up" with the tracks. Filing 198-5 at 217. Based on this
and other factors he has personally observed, Cantrell would testify that the
crossing is dangerous. Filing 228-1 at ¶¶ 1, 6, 11. Cantrell would also testify
that the crossing should be improved, by taking steps such as relocating and
realigning Highway 2, leveling the approaches to the crossing, and installing
automatic crossing gates. Filing 228-1 at ¶ 11; filing 198-5 at 217–18.
BNSF argues that Cantrell's testimony should be excluded as Cantrell
is attempting to offer what amounts to expert opinion in the guise of lay
testimony. For the most part, the Court is not persuaded. Cantrell's opinion
that the CR 429 crossing is dangerous is rationally based on his experience
and perceptions in traversing the crossing. The "'prototypical example[s] of
the type of evidence contemplated by . . . Rule 701'" include opinions
"'relat[ing] to the appearance of persons or things, identity, the manner of
conduct, competency of a person, degrees of light or darkness, sound, size,
weight, distance, and an endless number of items that cannot be described
factually in words apart from inferences.'" Fed. R. Evid. 701 Adv. Comm.
Notes (quoting Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190,
1196 (3d Cir. 1995)). The angle of a crossing, its general layout and geometry,
and the precautions necessary to traverse it safely are similarly within the
realm of "reasoning familiar in everyday life." Fed. R. Evid. 701 Adv. Comm.
Notes.
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However, Cantrell may not testify as to what remedial measures BNSF
should have taken to make the crossing safer. When it comes to realigning
state highways and similar feats of civil engineering, Cantrell is exiting the
realm of permissible lay opinion.
"It is absurd to contend that the average layman has, as a matter
of common knowledge, a sufficient grasp of the diverse factors
which must be considered in constructing and maintaining an
acutely angled railroad crossing which will afford a maximum of
safety and a minimum of inconvenience to vehicular traffic and
train movement."
Young v. Ill. Cent. Gulf R. Co., 618 F.2d 332, 338 (5th Cir. 1980) (quoting
Bridger v. Union Railway, 355 F.2d 382, 389 (6th Cir. 1966)). In short,
Cantrell may testify as to matters based on his personal experience and
perceptions, but not to specific remedial measures that exceed the scope of his
experience and perceptions.4
THEREFORE, IT IS ORDERED:
1.

BNSF's motions in limine (filings 199, 202, 205, and 208)
are each granted in part and denied in part, as set forth
above.

Dated this 17th day of February, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

In its reply brief in support of its motion to limit Cantrell's testimony, BNSF also asks the
Court to limit the testimony of various other lay witnesses that the CR 429 crossing is
dangerous. The foregoing analysis applies equally to these witnesses. If their observations
are based on personal experience, they are admissible. But if the witnesses seek to propose
specific solutions that require engineering or other expertise, their testimony will be
stricken.
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