Wilks v. BNSF Railway Company

Filing 235

ORDER by Magistrate Judge Kimberly E. West granting 155 Motion in Limine; granting 156 Motion in Limine; granting 157 Motion in Limine. (adw, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SAMANTHA WILKS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BNSF RAILWAY COMPANY,
a corporation,
Defendant.

Case No. CIV-18-080-KEW

O R D E R

This matter comes before the Court on the following Motions:


Defendant’s Daubert Motion Regarding David Anthony

Rangel (Docket Entry #157);


Defendant’s Fourteenth Motion in Limine Regarding

David Rangel’s Opinions on the Cotter Key and Its Removal
(Docket Entry #155); and


Defendant’s Fifteenth Motion in Limine [Regarding

Whether]
”Tricked”

RFE

Beals

Plaintiff

Intentionally
into

Violating

or

“Maliciously”

Federal

Law

by

“Hiding” Vital Information or That RFE Beals is Culpable
for Plaintiff’s Injuries (Docket Entry #156).
On August 10, 2020, this Court conducted a hearing to receive
the testimony of Mr. Rangel.

Counsel for the parties was present

and inquired of the witness.
This case is brought under the Federal Employers’ Liability

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Act (“FELA”) and the Federal Safety Appliance Act (“FSAA”) after
Plaintiff allegedly suffered an injury while assisting in the
replacement of a broken knuckle on a locomotive operated by
Defendant.

Specifically, as a part of replacing the knuckle, it

was necessary to remove a cotter key to allow the removal of the
knuckle.

The method and tools necessary for the safe removal of

the cotter key stands as one of the disputed issues in this case.
David Anthony Rangel was secured by Plaintiff as an expert witness
on these issues.

Defendant challenges both the qualifications of

Mr. Rangel to render an opinion on the issues identified in his
expert report and his methodology in reaching the conclusions
contained in his opinions.
Mr. Rangel testified that he has never been employed by a
railroad and that his experience in the railroad industry began in
1994 when he first owned the MODOC Railroad.

Prior to this

ownership, Mr. Rangel did voice over work in the movie and film
industry for 15 years in California.
degree.

He possesses no college

His expertise in entirely based upon his experience with

this railroad and the MODOC Railroad Academy which he started at
the suggestion of a “college buddy” who worked for BNSF to train
others on railroad operations.
According to Mr. Rangel, the MODOC Railroad ceased operations
in January of 2020.

When it existed, this railroad consisted of

the leasing of three miles of track.
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It had no mechanical

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department.

Mr. Rangel testified that he has not be trained as a

certified machinist or carman or in locomotive maintenance.

He

received in class training from BNSF to be a conductor and is
trained and certified as an engineer.
To arrive at his opinions, Mr. Rangel testified that he sent
12 e-mails to BNSF employees to ascertain whether they had received
training in the removal of cotter keys on knuckles.

According to

his expert report, his e-mails posed two questions:

(1) “[d]oes

BNSF provide you training on removing safety cotter keys from
coupler pins” and (2) “did you know that locomotives had safety
cotter keys on the coupler pins?”

He stated that he received

nine responses. His expert report states that eight of the persons
surveyed stated “no” to both questions and one that he designated
as a “Rapid Responder” for the railroad stated “yes” to both
questions.
Mr. Rangel testified that he does not remember the names of
the employees and is not in possession of the nine responses that
he allegedly received in response to his e-mail inquiries.

He

also stated that he “cannot access” the e-mails that he sent.

He

remembered that some of the parties he contacted were employed in
the Illinois, Arizona, and Texas regions but he cannot remember
where the rest worked.

Mr. Rangel stated that he chose to contact

the 12 BNSF employees that he chose to contact because they were
all he could remember as people that he trained in his MODOC
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Academy and later were employed by BNSF.

To be clear, Mr. Rangel

confirmed that BNSF never sent employees to him to be trained.

He

stated that he never requested names of BNSF employees who were
trained in Tulsa and he did not know the positions that the 12
persons he contacted currently occupied.

Mr. Rangel stated that

he did not follow up with the e-mail respondents to determine their
methodology in the removal of a cotter key.
Mr. Rangel also testified that he contacted CSX Railroad
employees.

His expert report, however, does not reference that

his opinions were based upon any such contacts.
Mr. Rangel testified on re-direct examination that he never
removed a cotter key from an F-style knuckle such as is at issue
in this case.

In fact, he confirmed that he did not know F-style

knuckles had cotter keys until 2008 when he purchased a locomotive.
As a result, prior to 2008, Mr. Rangel did not train in the removal
of cotter keys from F-style knuckles at his MODOC Academy.

In his

deposition, Mr. Rangel testified that he did not know if the only
way to remove a cotter key safely was with a blow torch or a key
knocker device.

He changed his mind in his testimony at the

hearing and stated that he now believes that using a hammer and
chisel for the removal of the cotter key is unsafe.

He also

testified that the first time he had used a key knocker device to
remove a cotter key was eight months ago.
In his expert report, Mr. Rangel concluded, in pertinent part,
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that:


The accident allegedly resulting in injury to Plaintiff
was preventable because “[t]here was absolutely no
reason for either crew member to attempt to remove the
safety cotter key on the broken coupler”, Plaintiff and
the conductor did not have a key knocker tool or blow
torch to remove the cotter key, and “[n]either crew
member had any advance training or warning from railroad
officers that the crew’s attempts to remove the safety
cotter key (sic).”



Plaintiff and the conductor were “tricked into unknowly
(sic)
violating
federal
law
in
CFR
49
§
240.305(a)(5)(6)”
and
he
“demonstrated
malicious
personal and company intent to jeopardize the crew’s
safety and continued employment by hiding vital
information from [Plaintiff] and the conductor”; namely,
that they could not safely remove the cotter key from
the knuckle pin with the tools they had on hand.



BNSF’s “Mechanical Help Desk” should have known that
specialized tools were required to remove the cotter key
and the crew of the locomotive did not have those tools.



BNSF failed to provide adequate training on the safe
removal of the cotter key (utilizing the e-mail
responses from nine alleged BNSF employees).



Information was kept from the Rapid Responder that the
train was fixed by the conductor and Plaintiff. Also,
the crew should have been told to wait until the Rapid
Responder arrived to attempt to remove the cotter key.



BNSF’s conclusions that
policies was erroneous.

Plaintiff

violated

safety

Generally, expert testimony is permitted under the following
criteria:
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,
5

technical,

or

other

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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 reasonably applied the principles
and methods to the facts of the case.

Fed. R. Evid. 702.
The court acts as a gatekeeper on two fronts under Rule 702
– whether the proposed expert witness is qualified to render the
opinions he sets out and, if he is so qualified, whether the
opinion

is

sufficiently

supported

by

making

“a

preliminary

assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue.”
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593
(1993); see also Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233
(10th Cir. 2005).

This analysis applies to all expert testimony.

Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
Just as the mere possession of a degree does not qualify and
individual from rendering a specific opinion, the mere ownership
of a small railroad leasing three miles of track does not qualify
Mr. Rangel to render opinions concerning the removal of a cotter
key from an F-style knuckle of which he admits he has had limited
knowledge and experience.

See e.g. Ralston v. Smith & Nephew
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Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001)(“. . . merely
possessing a medical degree is not sufficient to permit a physician
to

testify

omitted).

concerning

any

medical-related

issue”)(citation

At the outset, Mr. Rangel has no specialized training,

skill, knowledge, or education to render an opinion on the safety
of removing a cotter key on a broken F-style knuckle or the
training or equipment necessary to safely do so.

Indeed, he was

not even aware such a cotter key existed on this type of knuckle
for a good part of his career.

This leaves his experience which

can form an appropriate basis for forming an opinion or diagnosis.
Kuhmo Tire, 526 U.S. at 152; Daubert, 509 U.S. at 592.
the

expert

must

“explain

how

that

experience

However,

leads

to

the

conclusion reached, why that experience is a sufficient basis for
the opinion, and how that experience is reliably applied to the
facts.”

United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir.

2003) quoting Fed. R. Evid. 702, Advisory Committee Notes.
Nothing in Mr. Rangel’s experience as an owner of a small
railroad

would

establish

his

qualifications

reaching opinions as an expert witness.

render

his

far-

He has little to no

experience in the removal of a cotter key on a knuckle pin to
remove the F-style knuckle at issue in this case.

The record is

devoid of evidence that Mr. Rangel taught this type of specialized
training in his MODOC Academy but rather only that it should not
be done without sufficient support offered for this conclusion.
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As a result, this Court concludes that Mr. Rangel is not qualified
to render opinions on the safety of removing the cotter key.
Beyond his qualifications, Mr. Rangel has offered opinions in
relation to which the methodology in arriving at the opinions is
flawed.

The Supreme Court has made clear that “where [expert]

testimony's factual basis, data, principles, methods, or their
application are called sufficiently into question . . . the trial
judge must determine whether the testimony has ‘a reliable basis
in the knowledge and experience of [the relevant] discipline.’”
Kumho Tire Co., 526 U.S. at 149 (1999) quoting Daubert, 509 U.S.
at 592.

To assist in the assessment of reliability, the Supreme

Court in Daubert listed four nonexclusive factors that the trial
court may consider: (1) whether the opinion at issue is susceptible
to testing and has been subjected to such testing; (2) whether the
opinion has been subjected to peer review; (3) whether there is a
known or potential rate of error associated with the methodology
used and whether there are standards controlling the technique's
operation; and (4) whether the theory has been accepted in the
scientific community.

Daubert, 509 U.S. at 593–94. The list is

not exclusive, and courts applying Daubert have broad discretion
to consider a variety of other factors.

Kumho Tire, 526 U.S. at

150.
Generally, the focus should be upon an expert's methodology
rather than the conclusions it generates.
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Daubert, 509 U.S. at

6:18-cv-00080-KEW Document 235 Filed in ED/OK on 08/27/20 Page 9 of 12

595.

An expert's conclusions, however, are not completely immune

from scrutiny.
great

an

“A court may conclude that there is simply too

analytical

gap

between

the

data

and

the

opinion

proffered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
In the end, the purpose of the Daubert inquiry is always “to make
certain that an expert, whether basing testimony upon professional
studies or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an
expert in the relevant field.”

Kumho Tire, 526 U.S. at 152.

A review of the various opinions offered by Mr. Rangel in
his expert report reveals little support for the conclusions
reached. Mr. Rangel states that Plaintiff and the conductor should
not have removed the cotter key, that they received insufficient
training to remove the cotter key, and that some warning was
required from the railroad about the lack of safety in removing
the cotter key.

Mr. Rangel offers nothing but a bald assertion

that Plaintiff and the conductor should not have attempted to
remove the cotter key with no foundation for the opinion.

He also

states they received insufficient training to remove the cotter
key.

Certainly,

testimony.

Mr.

Rangel

ignores

Plaintiff’s

deposition

She believed the removal to be “no big deal” and was

familiar with the operation to do so.
44, ll. 22-24.

See Plaintiff’s Depo., p.

Mr. Rangel’s opinion on the training is largely

based upon his belief that the key knocker device is the safest
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way to remove the cotter key and appears to suggest that it is the
only way to remove it – again, without sufficient foundation stated
in his testimony or expert report for arriving at such an opinion.
BNSF is correct in its interpretation of the decision in Ezell v.
BNSF Railway Co., 949 F.3d 1274 (10th Cir. 2020).

It is the

obligation of the railroad to provide a safe workplace (and
consequently for a plaintiff to prove the railroad provided an
unsafe workplace in a FELA action) and not the safest possible
workplace.

Id. at 1282.

(“But to show railroad negligence, FELA

requires plaintiffs to show an unsafe workplace — not a failure to
provide the safest possible workplace.”).

Mr. Rangel fails to

provide support for his opinion that the use of a hammer and chisel
to remove the cotter key constitutes a breach of the duty for BNSF
to provide a safe workplace – an opinion to which he was late
coming at the Daubert hearing conducted by this Court.
Mr. Rangel also opines that Plaintiff was “tricked” by BNSF
employees to violate federal regulations.

This is the type of

“opinion shading” that clouds this expert’s methodology as a whole.
The

record

–

and

Mr.

Rangel

–

offers

no

support

for

this

conclusion.
The opinion that the “Mechanical Help Desk” should have known
that Plaintiff and the conductor did not have a key knocker device
presupposes that any alternative removal means was per se unsafe.
This opinion lacks support in methodology.
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Mr. Rangel also contends in his report and at the hearing
that BNSF failed to provide training on cotter key removal, citing
to the e-mail survey results to support his opinion.

The ad hoc

e-mail survey to unidentified – and apparently unidentifiable –
individuals represented to be BNSF employees is precisely the type
of manufactured support that the Daubert standards were formulated
to avoid.

Not only is the methodology of the surveying conducted

by Mr. Rangel suspect, but it is prejudicial to BNSF the results
cannot

be

tested

for

reliability.

His

conclusions

are

not

supported by competent evidence or by tested methodology and will
not be permitted.
Mr. Rangel states that the crew should have been told to wait
until the Rapid Responder arrived to remove the cotter key.

This

statement is derivative of the contention that Plaintiff and the
conductor should never have attempted to remove the key and is
equally unsupported.
Mr. Rangel’s final contention in his report that BNSF’s
conclusions that Plaintiff violated safety policies were incorrect
is not the type of issue upon which expert testimony assists the
jury.

The jury as fact finder is fully capable of evaluating the

evidence and determining whether BNSF’s conclusions were correct.
As a result, this Court concludes that Mr. Rangel lacks the
qualifications and did not employ reliable methodology to reach
the conclusions to which he testified at the hearing and on which
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6:18-cv-00080-KEW Document 235 Filed in ED/OK on 08/27/20 Page 12 of 12

he offered his expert report.

His testimony will be excluded from

trial.
IT

IS

THEREFORE

ORDERED

that

Defendant’s

Daubert

Motion

Regarding David Anthony Rangel (Docket Entry #157) is hereby
GRANTED
IT IS FURTHER ORDERED that Defendant’s Fourteenth Motion in
Limine Regarding David Rangel’s Opinions on the Cotter Key and Its
Removal (Docket Entry #155) is hereby GRANTED.
IT IS FURTHER ORDERED that Defendant’s Fifteenth Motion in
Limine

[Regarding

Whether]

RFE

Beals

Intentionally

or

“Maliciously” ”Tricked” Plaintiff into Violating Federal Law by
“Hiding” Vital Information or That RFE Beals is Culpable for
Plaintiff’s Injuries (Docket Entry #156) is hereby GRANTED.
IT IS SO ORDERED this 27th day of August, 2020.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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