Malinski v. BNSF Railway Company

Filing 128

OPINION AND ORDER by Judge John E Dowdell ; denying 38 Motion in Limine; denying 45 Motion in Limine (lml, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TYLER D. MALINSKI,
Plaintiff,
and
PAULA SMITH,
Intervenor,
v.
BNSF RAILWAY COMPANY,
Defendant.

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Case No. 15-CV-502-JED-FHM

OPINION AND ORDER
Before the Court are defendant BNSF Railway Company’s (“BNSF”) Daubert Motion
Regarding Plaintiff’s Expert, Dr. Adam Sherman (Doc. 38) and BNSF’s Daubert Motion
Regarding Plaintiff’s Expert, Steve Lett (Doc. 45). Both motions seek to exclude expert opinion
testimony pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Plaintiff timely responded to both motions, and
BNSF filed its replies.1
The most common method to assess a Daubert motion is by conducting a Daubert
hearing, although a hearing “is not specifically mandated.” Goebel v. Denver & Rio Grande W.
R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). Here, neither party has indicated that such a
hearing is necessary. After careful review of the motions and exhibits, the Court believes a
hearing is not required in this case.

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As the parties refer to the opinions of Dr. Sherman and Mr. Lett in their summary judgment
briefing, the Court addresses the Daubert motions before considering BNSF’s summary
judgment motion.

I.

Background
Defendant BNSF removed this case on August 28, 2015. (Doc. 2).

Plaintiff’s lawsuit

seeks recovery from BNSF for personal injury damages he sustained from a motor vehicle
accident between his vehicle and a train owned and operated by BNSF. Plaintiff alleges that
BNSF failed to protect the grade crossing by using automatic signaling devices, flashing lights,
or crossing guards, and that such failure amouns to negligence. Plaintiff further alleges that
BNSF’s negligence was the proximate cause of the collision, which left plaintiff permanently
partially disabled. (Doc. 4-4 at 2).

On December 5, 2016, the Court allowed intervention by

Paula D. Smith, the mother of the passenger in plaintiff’s vehicle who died shortly after the
accident. (Doc. 109).
II.

Legal Standards Governing Expert Testimony
Rule 702 of the Federal Rules of Civil Procedure governs the admissibility of expert

testimony. The rule provides as follows:
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.
Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 597
(1993), the Supreme Court held that the rule requires the district courts to act as gatekeepers and

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ensure that scientific expert testimony is relevant and reliable. An expert’s opinion must be
based on “more than subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590.
The applicability of Daubert was later expanded to apply to the opinions of all experts, not just
scientific experts. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (“We conclude
that Daubert’s general holding—setting forth the trial judge’s general ‘gatekeeping’ obligation—
applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on
‘technical’ and ‘other specialized’ knowledge.”).
In Bitler v. A.O. Smith Corp., 400 F.3d 1227 (10th Cir. 2005), the Tenth Circuit rehearsed
the two-part inquiry undertaken by district courts when considering a Daubert challenge. First,
the court must determine whether “the expert’s proffered testimony . . . has ‘a reliable basis in
the knowledge and experience of his [or her] discipline.’”

400 F.3d at 1232-33 (quoting

Daubert, 509 U.S. at 592). This involves “conducting a preliminary inquiry into the expert’s
qualifications and the admissibility of proffered evidence.” Id. at 1233. An impermissible
analytical gap in an expert’s methodology can be a sufficient basis to exclude expert testimony
under Daubert. See id.; see also Norris v. Baxter Healthcare Corp., 397 F.3d 878, 886 (10th Cir.
2005). “Neither Daubert nor the Federal Rules of Evidence ‘require[ ] a district court to admit
opinion evidence which is connected to existing data only by the ipse dixit of the expert.’”
Norris, 397 F.3d at 886 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
The Supreme Court set forth several non-exclusive factors that a court may consider in
determining whether proposed expert testimony will assist the trier of fact: (1) “whether it can be
(and has been) tested”; (2) “whether the theory or technique has been subjected to peer review
and publication”; (3) the “known or potential rate of error” of a technique; and (4) whether the
theory or technique has “general acceptance,” which is an important consideration because “‘a

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known technique which has been able to attract only minimal support within the community’
may properly be viewed with skepticism.” Daubert, 509 U.S. at 593-94. The inquiry into these
factors is “a flexible one,” and the focus is “on principles and methodologies, not on the
conclusions that they generate.” Id. at 593.
Under the second part of the Daubert analysis, the court must ensure that the proposed
testimony is relevant. Bitler, 400 F.3d at 1234 (quoting Daubert, 509 U.S. at 597). “A trial
court must look at the logical relationship between the evidence proffered and the material issue
that evidence is supposed to support to determine if it advances the purpose of aiding the trier of
fact.” Id.
Importantly, while an expert opinion “‘must be based on facts which enable [the expert]
to express a reasonably accurate conclusion as opposed to conjecture or speculation . . . absolute
certainty is not required.’” Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003)
(quoting Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir. 1995)). The district
court may properly allow expert testimony that is allegedly inadequate or incomplete “provided
the inadequacies are known to the defendant in order to thoroughly cross-examine the witness.”
Hertz Corp. v. Gaddis-Walker Elec., Inc., 125 F.3d 862 (10th Cir. 1997) (citing Firestone Tire &
Rubber Co. v. Pearson, 769 F.2d 1471, 1482-83 (10th Cir. 1985)); see also Daubert, 509 U.S. at
596 (“Vigorous cross-examination . . . [is] the traditional and appropriate means of attacking
shaky but admissible evidence.”).
III.

Discussion
For the reasons discussed in the Court’s March 9, 2017 Order (Doc. 127), BNSF’s

arguments regarding plaintiff’s alleged failure to comply with discovery deadlines are moot. The
Court thus confines its analysis to the remaining issues presented in the motions.

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A. Defendant’s Daubert Motion Regarding Plaintiff’s Expert, Dr. Adam Sherman
(Doc. 38)
BNSF’s Motion argues that plaintiff’s expert, Dr. Adam Sherman, should be prevented
from testifying at trial under Fed. R. Evid. 702 and Daubert. BNSF has moved to strike Dr.
Sherman as an expert because his pre-determined opinion employed improper methodology and
is not supported by sufficient evidence. (Doc. 38 at 7-9). In response, plaintiff argues that
BNSF’s objections are argumentative and are more properly evaluated on cross-examination.
(Doc. 65 at 2).
As BNSF raises no issue regarding Dr. Sherman’s qualifications, the Court focuses its
attention on the reliability of his expert opinion diagnosing plaintiff with a traumatic brain injury
(“TBI”) and posttraumatic stress disorder (“PTSD”). (Doc. 38, Exhs. 1-2). BNSF challenges Dr.
Sherman’s methodology, arguing that he concluded plaintiff suffered from TBI and PTSD in his
preliminary report without ever meeting plaintiff, and subsequently conducted testing “to support
his opinions.” BNSF also argues that the evidence obtained by Dr. Sherman failed to support his
opinions. (Doc. 38 at 7).
The Court concludes that Dr. Sherman’s methodology is sufficiently reliable under
Daubert. Dr. Sherman’s May 6, 2016 letter contained his “initial clinical impressions” based on
medical records and sought to help identify “further treatment/evaluation options that would be
appropriate for Mr. Malinski.”

(Doc. 38, Exh. 1).

Dr. Sherman stated that “the records

surrounding Mr. Malinski’s accident clearly indicates that he sustained a traumatic brain injury,”
but recommended plaintiff undergo a comprehensive neuropsychological evaluation to identify
any residual deficits resulting from TBI. (Id. at 2). Dr. Sherman’s review of the same records
“provide[] sufficient trauma to prompt a PTSD,” and he again recommended a formal evaluation
to assess any additional psychological injuries (Id.). On May 28, 2016, Dr. Sherman conducted
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a clinical interview and mental status evaluation with plaintiff and his parents, and completed
formal testing. Dr. Sherman’s Neurophysicological Report reflects the results of his observations
and testing, in addition to his review of medical records associated with the accident in
December 2014 and progress notes from Dr. Tyrell from June 2015. (Doc. 38, Exh. 2 at 1, 3).
Based on the results, Dr. Sherman concluded that “this would appear to be the special case in
which diagnosis of both TBI and PTSD are appropriate and valid.” (Id. at 7).
The Court does not find that Dr. Sherman’s methodology was improper. It is clear that
Dr. Sherman’s diagnoses were based upon the medical records provided to him as well as his
own testing, which is proper under Daubert and Rule 702. See Dodge, 328 F.3d at 1222 (expert
opinions must be based on facts in order to be admissible). Importantly, BNSF provides no
relevant law that it is improper for an expert to provide initial impressions based on the medical
records, and to later confirm these impressions after conducting clinical interviews and his own
testing.2

Moreover, the Court is unpersuaded by BNSF’s arguments that Dr. Sherman’s

conclusions lack support from his testing and “the contravening facts of Plaintiff’s life” and are
thus “unsupported speculation.” (Doc. 38 at 9). These arguments are merely challenges to the
factual bases for Dr. Sherman’s diagnoses of TBI and PTSD, which BNSF may attack by crossexamination at trial. See Daubert, 509 U.S. at 596 (“Vigorous cross-examination . . . [is] the
traditional and appropriate means of attacking shaky but admissible evidence.”). Further, these
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The case cited by BNSF in support of its argument that Dr. Sherman’s proffered expert
testimony should be excluded for improperly utilizing a “conclusion first, testing later”
methodology, Claar v. Burlington N. R. Co., 29 F.3d 499 (9th Cir. 1994), is distinguishable from
this case. Unlike Dr. Sherman, the experts in Clarr “formed their opinions before reading the
relevant literature, even though they admitted that they were not sufficiently familiar with the
field to diagnose the causes of plaintiffs’ injuries without first reviewing that literature.” Id. at
502. The Ninth Circuit thus concluded that there was no scientific method to support the
experts’ opinions. By contrast, Dr. Sherman reviewed all the relevant medical records provided
to him prior to reaching his initial conclusion.
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issues go to the weight of an expert’s testimony rather than to its admissibility. See, e.g., Tingey
v. Radionics, 193 F. App’x 747, 767 (10th Cir. 2006) (unpublished) (“‘[D]isputes as to the
strength of [an expert’s] credentials, faults in his . . . methodology, or lack of textual authority for
his opinion, go to the weight, not the admissibility of his testimony.”).
BNSF’s Daubert Motion Regarding Plaintiff’s Expert, Dr. Adam Sherman (Doc. 38) is
thus denied.
B. Defendant’s Daubert Motion Regarding Plaintiff’s Expert, Steve Lett (Doc. 45).
BNSF seeks to exclude the opinion testimony of plaintiff’s liability witness, Steve Lett,
pursuant to Rule 702 of the Federal Rules of Evidence and Daubert. Mr. Lett’s engineering
study opines that plaintiff did not have enough sight distance to see the oncoming train because
BNSF did not properly maintain the right-of-way. (Doc. 45, Exh. 1 at 4). First, BNSF argues
that Mr. Lett is not qualified as an expert because he has no experience with railroad crossings or
accidents that have taken place at railroad crossings. (Doc. 45 at 3-4). Second, BNSF contends
that Mr. Lett’s opinions are not supported by his own measurements, photographic evidence,
plaintiff’s testimony, and regulations regarding sight distances at railroad crossings. (Id. at 4).
BNSF argues, without supporting any case law, Mr. Lett’s lack of experience related to
railroad crossings is dispositive as to his qualifications as an expert in this case. However, the
Tenth Circuit has stated that “firsthand knowledge is not requisite to the admissibility of an
expert opinion,” and is more relevant to the weight of the expert’s opinion instead of its
admissibility. Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1244 (10th Cir. 2000) (concluding
that district court properly determined experts were qualified despite their lack of experience
with the particular machines at issue in the case); see also Lovato v. Burlington N. & Santa Fe
Ry. Co., 2002 WL 1424599, at *4 (D. Colo. June 24, 2002) (finding that expert’s “lack of

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professional experience with the railroad industry is not dispositive as to the issue of his
qualifications to serve as an expert in this case”).
The Court concludes that Mr. Lett’s lack of knowledge specific to railroad crossings does
not bar him from testifying in this case. Mr. Lett is a civil engineer and the current CEO of TriState Engineering with years of experience in structural, civil, environmental, and construction
engineering. (Doc. 45, Exh. 1, at 9). His resume indicates that he was Vice President of a
general contracting firm that worked on transportation projects, and also served as a project
engineer on projects including “roads and site development.” (Id.).

Further, Mr. Lett has

testified as an expert witness in over 100 cases, including construction-related matters. (Id.).
Based on the above, the Court concludes that Mr. Lett’s education and vast work
experience adequately qualify him for the issues to which he intends to testify, specifically
regarding maintenance of BNSF’s right-of-way and visibility at the crossing. See Fed. R. Evid.
702(e). Contrary to BNSF’s assertion, the fact that Mr. Lett lacks experience related specifically
to railroad crossings is not an automatic bar to his qualifications to testify as an expert in this
case. Such attacks are more relevant to the weight the jury may give to his opinion. See Smith,
214 F.3d at 1244. Moreover, the Court finds that Mr. Lett’s knowledge will help the trier of fact
in determining whether BNSF is liable and that his opinion states more than simply lay
observations.
Further, the Court rejects BNSF’s challenges to the factual bases of Mr. Lett’s opinion.
Specifically, Mr. Lett based his opinion on his review of BNSF locomotive videos, photos from
seven different sources, the Oklahoma traffic collision report, the Manual on Uniform Traffic
Control Devices, the Federal Highway Administration’s Railroad-Highway Grade Crossing
Handbook, the American Association of State Highway and Transportation Officials’ Policy on

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Geometric Design of Highways and Streets, the Oklahoma Highway Patrol investigating
trooper’s report, Okla. Stat. tit. 47, § 47-11-701, and a site visit conducted on April 21, 2015.
BNSF first contends that Mr. Lett’s opinion regarding sight distance is undermined by his own
finding that plaintiff’s sight distance was 742 feet when he was stopped 50 feet from the railroad
track, when Oklahoma law only requires a sight distance of 250 feet when a vehicle is 50 feet
from a railroad track. (Doc. 45 at 4-5). Next, BNSF cites to photos, plaintiff’s deposition
testimony, BNSF’s locomotive video, and the report of its own expert, Jay Pfeiffer, to argue that
Mr. Lett’s opinion is not supported by record evidence. (Id. at 5-7). In response, plaintiff points
out that BNSF’s argument omits the portion of Mr. Lett’s opinion that concludes plaintiff’s sight
distance was restricted by trees and brush on the right-of-way, and that arguments concerning the
weight of evidence are not sufficient to exclude expert testimony under the federal standards.
(Doc. 68 at 2-3). The Court concludes that BNSF’s factual challenges go to the weight to be
afforded to Mr. Lett’s opinion and are more properly raised during cross-examination at trial.
See Daubert, 509 U.S. at 596.
Accordingly, BNSF’s Daubert Motion Regarding Plaintiff’s Expert, Steve Lett (Doc. 45)
is denied.
IT IS THEREFORE ORDERED that BNSF’s Daubert Motion Regarding Plaintiff’s
Expert, Dr. Adam Sherman (Doc. 38,) and BNSF’s Daubert Motion Regarding Plaintiff’s
Expert, Steve Lett (Doc. 45) are denied.
SO ORDERED this 31st day of March, 2017.

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