Wilks v. BNSF Railway Company
ORDER by Magistrate Judge Kimberly E. West denying 152 Daubert Motion Regarding Dr. Rebecca Summary.(adw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
BNSF RAILWAY COMPANY,
Case No. CIV-18-080-KEW
O R D E R
This matter comes before the Court on Defendant’s Daubert
Motion Regarding Dr. Rebecca Summary (Docket Entry #152).
parties agreed that no hearing was necessary for the Court to
determine the admissibility of Dr. Summary’s testimony.
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 BNSF Railway Company (“BNSF”).
Plaintiff retained Dr.
Summary, an economist, to testify as to the value of Plaintiff’s
lost wages and benefits as a result of her injury. BNSF challenges
Dr. Summary’s methodology in arriving at her conclusions.
BNSF’s identified bases for challenging Dr. Summary’s methods
and conclusions are:
(1) the use of four different methodologies
in four different FELA cases in which she rendered an opinion on
damages; (2) Dr. Summary’s retirement age assumption represents a
speculative statistical improbability; (3) Dr. Summary’s opinion
assumptions to arrive at her conclusions; and (4) Dr. Summary’s
Generally, expert testimony is permitted under the following
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:
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;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and
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
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 Dr. Summary’s qualifications as an
Rather, BNSF opposes the methodology employed by Dr.
Summary and, in particular, the assumptions she made in arriving
at her damage calculation.
BNSF first objects to the fact that Dr. Summary utilized four
different methodologies in arriving at the highest possible damage
calculation of lost wages.
A careful reading of BNSF’s brief
reveals that it does not challenge any of the four methodologies
on the basis that they have no foundation in the science of
Rather, the challenge lies in the fact that four
different methodologies are used in four different FELA cases.
This Court takes the admonition espoused in Daubert seriously when
the United States Supreme Court stated:
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. . . . Additionally, in
the event the trial court concludes that the scintilla
of evidence presented supporting a position is
insufficient to allow a reasonable juror to conclude
that the position more likely than not is true, the court
remains free to direct a judgment, Fed. Rule Civ. Proc.
50(a), and likewise to grant summary judgment, Fed. Rule
Civ. Proc. 56. . . . These conventional devices, rather
than wholesale exclusion under an uncompromising general
acceptance test, are the appropriate safeguards where
the basis of scientific testimony meets the standards of
Daubert, 509 U.S., at 596.
This Court is confident that BNSF’s counsel will subject Dr.
Summary’s opinions to considerable scrutiny under the rigors of
cross-examination such that the jury can consider the differing
methodologies employed in the same type of cases.
Dr. Summary may
or may not have a reasonable explanation for doing so – but the
jury is the appropriate evaluator of this testimony, not this Court
in its gatekeeper function.
Plaintiff’s retirement age and basis for ascertaining the amount
of her lost wages are unduly speculative given the applicable
Dr. Summary assumes a retirement age of 67 for
Plaintiff which BNSF states represents only 4% of employees.
also utilizes Plaintiff’s last year of earnings to project lost
earnings for twenty years as well as assuming a generous benefits
package – both of which BNSF states are unreasonable assumptions.
Again, BNSF is charged with the responsibility of making
certain the jury understands that Dr. Summary’s opinion may or may
not result in an inflated wage claim on cross-examination and
through the use of its own expert, if it so chooses.
will not transform the gatekeeper function into an arbitrary filter
through which the opinion is sifted such that only the bases urged
by BNSF is presented to the jury.
BNSF also contends that certain facts were provided to Dr.
Summary by Plaintiff’s counsel and were not independently verified
before she rendered her opinions.
If Dr. Summary utilized facts
which turn out to be untrue and failed to verify those facts before
reaching her opinion, the reliability of those opinions will likely
suffer before the jury on cross-examination.
Exclusion will not
be the appropriate avenue for challenge of Dr. Summary’s opinion.
Regarding Dr. Rebecca Summary (Docket Entry #152) is hereby DENIED.
IT IS SO ORDERED this 31st day of March, 2021.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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