Oliveros v. BNSF Railway Company

Filing 98

MEMORANDUM AND ORDER- BNSF's motion in limine (Filing 43 ) to exclude the opinion testimony of Alan Blackwell is denied in part and granted in part as follows: As to Blackwell's opinion testimony regarding vegetation and lighting, the m otion in limine is denied without prejudice to reassertion at trial; As to Blackwell's opinion testimony about subsequent remedial measures, the motion in limine is denied without prejudice to reassertion at trial; As to Blackwell's opinion testimony about alternative crew change locations, the motion in limine is denied; As to Blackwell's opinion testimony about ballast, the motion in limine is denied, but the motion in limine is granted insofar as Blackwell seeks to testify regarding legal matters. Ordered by Senior Judge Richard G. Kopf. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LOUIS OLIVEROS,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.

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8:14CV135

MEMORANDUM
AND ORDER

Defendant BNSF has filed a motion in limine (Filing 43) to exclude the opinion
testimony of Plaintiff’s expert, Alan Blackwell, under Fed. R. Civ. P. 702 and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), arguing that Blackwell’s
opinions about lighting and vegetation will not assist the trier of fact; his opinions
about subsequent remedial measures are inadmissible under Fed. R. Evid. 407; his
opinions about alternative crew change locations are inadmissible as “safer alternative
methods” under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51, et
seq.; and his opinions about ballast are precluded by 49 C.F.R. § 213.103. (Filings
43-1 & 46, Def.’s Briefs Supp. Mot. Lim.)
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.

The screening requirement of Rule 702 has been boiled down to a three-part
test:
First, evidence based on scientific, technical, or other specialized
knowledge must be useful to the finder of fact in deciding the ultimate
issue of fact. This is the basic rule of relevancy. Second, the proposed
witness must be qualified to assist the finder of fact. Third, the proposed
evidence must be reliable or trustworthy in an evidentiary sense, so that,
if the finder of fact accepts it as true, it provides the assistance the finder
of fact requires.
Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014).
Blackwell is a professional railway consultant with 40 years of practical and
specialized experience, training, and knowledge in the construction, maintenance, and
inspection of railway track and roadbeds acquired through his 24 years of employment
with the Missouri Pacific and Union Pacific Railroads and 15 years of consulting.
(Filing 45-3, Aff. Alan Blackwell; Filing 45-4, Blackwell Curriculum Vitae.) My
rulings on BNSF’s objections to Blackwell’s opinion testimony are as follows:
#Blackwell’s opinion testimony regarding vegetation and lighting are clearly
relevant because Plaintiff has alleged that BNSF was negligent by failing to remove
vegetation and to provide adequate overhead lighting, and those issues remain
controverted in the Final Pretrial Conference Order. (Filing 76, Order on Final
Pretrial Conf. at CM/ECF p. 2 ¶¶ 3(i) & (k).) This portion of BNSF’s motion in
limine shall be denied.
#To the extent Plaintiff plans to use Blackwell to establish negligence by virtue
of the fact that after the date of Plaintiff’s fall, BNSF sent out a general notice
designating crew change locations that were equipped with stairs and mowed
vegetation within the right of way, such testimony is inadmissible under Fed. R. Evid.
407 (“When measures are taken that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove . . .
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negligence”). However, because such evidence may be admitted for other purposes,
such as impeachment, I shall deny this portion of the motion in limine without
prejudice to its reassertion during trial, where I can determine if an exception to Rule
407 applies as the evidence is presented.
#BNSF objects to Blackwell’s opinions about alternative crew change locations
because they are inadmissible as “safer alternative methods” under FELA. The
opinion BNSF appears to reference is Blackwell’s observation that, “The first crossing
west of the incident . . . provided a level and convenient place to change crews and
Mr. Oliveros states that he had performed crew changes at that location numerous
times.” (Filing 45-8 at CM/ECF p. 4.) The facts that there was an alternative flat
grade crossing nearby, and that it was BNSF’s past practice to use that grade crossing
as a crew-change location before Plaintiff’s accident, are relevant in assessing BNSF’s
negligence in allowing the crew change to occur where Plaintiff was injured. Stone
v. New York, C., & St. L. R. Co., 344 U.S. 407, 408 (1953) (FELA case referring to
evidence of four alternative methods used to remove stubborn railroad ties; question
of whether railroad supervisor should have directed workers to “use[] another or
different method to remove the tie or [whether] failing to do so was culpable” was “a
debatable issue on which fair-minded men would differ,” and existence of alternative
methods was part of “the situation to be appraised in determining whether respondent
was negligent”); Ybarra v. Burlington N., Inc., 689 F.2d 147, 150 (8th Cir. 1982)
(“When the evidence shows that the railroad customarily does not enforce a safety
rule, the jury is entitled to consider whether that custom constituted negligence and
whether it caused, in whole or part, the plaintiff’s injury.”). Accordingly, this portion
of BNSF’s motion in limine shall be denied.
#Finally, BNSF argues that Blackwell’s opinions about ballast are precluded
by the railroad’s alleged compliance with 49 C.F.R. § 213.103. Based on my prior
order (Filing 92) denying BNSF’s motion for summary judgment on the issue of

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FELA/FRSA1 preclusion, I shall deny this portion of the motion in limine. BNSF also
objects to any portion of Blackwell’s testimony that offers legal conclusions, such as
BNSF’s violation of railroad standards, safety rules, guidelines, statutes, or federal
regulations. While Blackwell may testify as to the existence of industry practices or
standards, he cannot opine on matters of law. “[E]xpert testimony on legal matters is
not admissible.” Southern Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc.,
320 F.3d 838, 841 (8th Cir. 2003) (expert opinion as to whether insured helicopter
was being operated in violation of FAA regulations, within meaning of policy
exclusion, was inadmissible). Therefore, to the extent Blackwell plans to testify about
legal matters, I shall grant BNSF’s motion in limine.
Accordingly,
IT IS ORDERED that BNSF’s motion in limine (Filing 43) to exclude the
opinion testimony of Alan Blackwell is denied in part and granted in part as follows:
1.

As to Blackwell’s opinion testimony regarding vegetation and lighting,
the motion in limine is denied without prejudice to reassertion at trial;

2.

As to Blackwell’s opinion testimony about subsequent remedial
measures, the motion in limine is denied without prejudice to reassertion
at trial;

3.

As to Blackwell’s opinion testimony about alternative crew change
locations, the motion in limine is denied;

1

FRSA refers to the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20101,

et seq.
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4.

As to Blackwell’s opinion testimony about ballast, the motion in limine
is denied, but the motion in limine is granted insofar as Blackwell seeks
to testify regarding legal matters.

DATED this 29th day of March, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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