Wilks v. BNSF Railway Company

Filing 262

ORDER by Magistrate Judge Kimberly E. West denying 154 Motion in Limine. (adw, Deputy Clerk)

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 Defendant’s Thirteenth
Motion in Limine Regarding Plaintiff’s Metallurgist Expert, Larry
Hanke, P.E. Offering Opinions Which Are Beyond the Scope of His
Expertise (Docket Entry #154).

On August 10, 2020, this Court

conducted a hearing to receive the testimony of Mr. Hanke. Counsel
for the parties was present and inquired of the witness.
This case is brought under the Federal Employers’ Liability
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.
Larry Hanke, P.E., a metallurgist, was employed by Plaintiff as an

1

expert witness to testify as to the conditions surrounding the
failure of the knuckle.
Mr. Hanke testified at the hearing that he has never worked
for a railroad nor been trained in the inspection of locomotives
or

the

attendant

regulations

concerning

the

requirements

for

inspections imposed by the Federal Railroad Administration.

He

inspected the broken knuckle which forms the subject matter of
this case.

Mr. Hanke concluded that the crack in the knuckle was

attributable to a casting flaw below the surface of the knuckle.
He also opined that the crack would have been visible weeks or
even months prior to the failure but that it.

Mr. Hanke testified

in his deposition, however, that there was no way to identify a
particular time when the crack would have become visible. He could
not state whether the crack violated the regulations governing the
railroads.
Defendant challenges the methodology employed by Mr. Hanke in
arriving at the conclusion that the crack in the knuckle would
have been visible to the naked eye.
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, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
2

(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).
BNSF does not challenge Mr. Hanke’s qualifications as a
metallurgist.

It does challenge his methodology in arriving at

his opinion that the crack would have been visible.
In his expert report, Mr. Hanke states that he performed a
metallurgical engineering evaluation including the examination of
the failed knuckle at the Engineering Systems, Inc. facility in
Omaha, Nebraska on January 22, 2019.

3

His analysis consisted of a

visual inspection and light microscopy examination of the failed
knuckle

as

well

as

microstructure

characterization,

chemical

analysis, and mechanical testing of the knuckle material.
Mr. Hanke concludes that the “failed coupler was weakened by
a substantial crack in the knuckle casting that existed prior to
the final fracture.”

He also found the crack had a “brick-red

surface deposit” which “indicated that this area of the fracture
had been exposed to weather elements for a longer time period.
Fracture features indicated that that final fracture initiated
from this pre-existing crack.”

Def. Mot. at Exh. No. 1, p. 2.

In his deposition, Mr. Hanke stated that he believed the two
inch length of the crack in the knuckle was present months before
the failure. He also opined that the crack would have been visible
to the naked eye upon inspection.

Def. Mot. at Exh. 3, p. 62, ll.

11-20.
BNSF is critical of Mr. Hanke’s lack of experience in the
railroad industry, generally, and with knuckles, specifically.

It

states that an FRA inspection in 2014 did not find a crack,
challenging Mr. Hanke’s findings.
The record, including Mr. Hanke’s report, indicates that the
crack in the knuckle was due to a casting flaw below the surface
of

the

metal.

Because

he

lacks

experience

in

the

railroad

industry, Mr. Hanke admitted on examination that he did not know
whether the crack violated the applicable railroad regulations or
4

whether the regulations allows some cracks.

He is familiar with

forces such as those applied to the couplings in this case and
with metallurgy in particular.
Mr. Hanke demonstrated a knowledge of metallurgy such that
his

methodology

Knowledge

of

was

the

supported

railroad

in

reaching

industry

and

his

conclusions.

railroad

industry

regulations does not disqualify him from offering an opinion as to
the origins of the crack in the knuckle and whether it would be
visible to the naked eye given the metallurgical nature of the
crack arising from an internal casting flaw.

Whether the crack

should have been visible to inspectors of the knuckle is a matter
to be decided by the jury based, in part, upon Mr. Hanke’s expert
analysis and opinion.
IT

IS

THEREFORE

His testimony will be permitted at trial.
ORDERED

that

Defendant’s

Daubert

Motion

pertaining to Larry Hanke, P.E. represented in its Thirteenth
Motion in Limine (Docket Entry #154) is hereby DENIED.
IT IS SO ORDERED this 31st day of March, 2021.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

5