Rayner v. Union Pacific Railroad Company et al
ORDER granting 101 Union Pacific's Daubert Motion Regarding Plaintiff's Expert Charles Culver and striking any expert opinion testimony offered byCharles Culver (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 12/18/2014. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MITZI JAYNE RAYNER, Personal
Representative of the Estate of Gary
Don Rayner (Deceased),
THE UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation, and
MID-CONTINENT, INC., a Delaware
Case No. CIV-13-46-M
Before the Court is defendant Union Pacific Railroad Company’s (“Union Pacific”) Daubert
Motion Regarding Plaintiff’s Expert Charles Culver, filed October 2, 2014. On October 29, 2014,
plaintiff filed her response, and on November 3, 2014, plaintiff filed a supplement to her response.
On November 10, 2014, Union Pacific filed its reply. Based upon the parties’ submissions, the
Court makes its determination.
This case arises from a March 1, 2012, vehicle-train collision, approximately two miles south
of Dover, Oklahoma. Plaintiff’s husband, Gary Don Rayner, was struck and killed by a southbound
Union Pacific train. Plaintiff has retained Charles Culver, a former railroad engineer, as an expert.
Mr. Culver has opined that the train’s audible warning was not used in the most effective manner
for the conditions. Specifically, Mr. Culver opines that the emergency horn pattern, a series of short
blasts, should have been used “about 4 seconds before impact” and if that had been done, Mr.
Rayner “could have either stopped short of the crossing, or accelerated to escape the path of the
train.” Mr. Culver’s Preliminary Report at 5-6.
Union Pacific has now moved the Court to strike any opinions from Mr. Culver.1
Specifically, Union Pacific asserts that Mr. Culver’s opinion that the train’s audible warning was
not used in the most effective manner for the conditions is preempted. Union Pacific contends that
Mr. Culver’s opinion regarding the sounding of the horn is both contrary to federal regulations and
based on outdated or inapplicable internal rules. Union Pacific further asserts that Mr. Culver’s
opinions will not assist the trier of fact as he has no evidence that sounding the emergency pattern
would have made any difference.
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
(d) the expert has reliably applied the principles and methods
to the facts of the case.
Fed. R. Evid. 702.
The federal regulations governing train horns provide, in pertinent part:
(a)(1) Notwithstanding any other provision of this part, a locomotive
engineer may sound the locomotive horn to provide a warning to
animals, vehicle operators, pedestrians, trespassers or crews on other
trains in an emergency situation if, in the locomotive engineer’s sole
judgment, such action is appropriate to prevent imminent injury,
death or property damage.
(2) Notwithstanding any other provision of this part, . . . this part
does not preclude the sounding of locomotive horns in emergency
In its motion, Union Pacific is not challenging Mr. Culver’s qualifications.
situations, nor does it impose a legal duty to sound the locomotive
horn in such situations.
49 C.F.R. § 222.23(a) (emphasis added).
This rule does not require the routine sounding of locomotive horns
at private highway-rail grade crossings. However, where State law
requires the sounding of a locomotive horn at private highway-rail
grade crossings, the locomotive horn shall be sounded in accordance
with § 222.21 of this part.
49 C.F.R. § 222.25.2
Additionally, Union Pacific’s General Code of Operating Rules applicable at the time of the
accident in this case provides, in pertinent part:
to attempt to
attract attention to
Use when persons or livestock are on the
track at other than road crossings at grade.
Use when within quiet zones when
engineer believes such action is
appropriate. When unable to determine an
employees work group, sound signal 5.8.2
Mr. Culver’s Preliminary Report at 3 (emphasis added). The above rule previously provided that
the sound should be “Succession of short sounds.” Some time prior to the accident, this language
was removed, and “Sound whistle to attempt to attract attention to the train” was inserted in its
Mr. Culver’s expert opinion hinges on the alleged “industry standard” emergency horn signal
of a succession of short sounds. Mr. Culver, however, does not set forth any rule or written standard
to show that the emergency horn signal is the industry standard, other than Union Pacific’s prior rule
Oklahoma law does not require the sounding of train horns at private crossings, such as the
crossing involved in the instant action.
that was changed prior to the accident at issue. Neither plaintiff, nor Mr. Culver, has set forth any
case, statute, or regulation that was applicable at the time of the accident that required Union Pacific
to sound a succession of short sounds in this instance. In fact, based upon the federal regulations,
as well as Union Pacific’s rule, Union Pacific had no duty to sound a succession of short sounds.
Accordingly, the Court finds that Mr. Culver’s expert testimony should be stricken.
Additionally, the Court finds that Mr. Culver’s opinion that if the train engineer had sounded
the emergency horn signal about 4 seconds before impact, Mr. Rayner could have either stopped
short of the crossing or accelerated to escape the path of the train is not based on sufficient facts or
data. Specifically, the Court finds that Mr. Culver is not an audiologist; he does not know what the
conditions of audibility were inside Mr. Rayner’s truck; and he does not know at what point Mr.
Rayner would have heard a differently blown horn. Further, Mr. Culver relies on no identified
studies indicating that the emergency pattern would make a difference and relies on no qualified
experts in so concluding.3
In his preliminary report, Mr. Culver states: “[i]n my experience, this method of audible
warning has enabled me to attract the attention of a driver who was not responding to the train,
whereby I was able not only to make my presence known, but also to relay the frantic nature of the
message that the train cannot stop, and the driver must take evasive action to avoid the collision.”
Mr. Culver’s Preliminary Report at 6. Mr. Culver provides no details about this prior experience
so that it can be compared to the facts involved in this case.
Accordingly, the Court GRANTS Union Pacific’s Daubert Motion Regarding Plaintiff’s
Expert Charles Culver [docket no. 101] and STRIKES any expert opinion testimony offered by
IT IS SO ORDERED this 18th day of December, 2014.
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