Rayner v. Union Pacific Railroad Company et al
Filing
242
ORDER denying 100 Union Pacific's Daubert Motion Regarding Archie Burnham (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 1/7/2015. (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),
Plaintiff,
vs.
THE UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation, and
NEWFIELD EXPLORATION
MID-CONTINENT, INC., a Delaware
corporation,
Defendants.
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Case No. CIV-13-46-M
ORDER
Before the Court is defendant Union Pacific Railroad Company’s (“Union Pacific”) Daubert
Motion Regarding Archie Burnham, filed October 2, 2014. On October 30, 2014, plaintiff filed her
response, and on November 10, 2014, Union Pacific filed its reply. On December 16, 2014, Union
Pacific filed a Supplement to Its Daubert Motion to Exclude Archie Burnham, and on December 22,
2014, plaintiff filed her response to Union Pacific’s supplement.
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 Archie Burnham as an expert. Union Pacific has now
moved the Court to strike any opinion testimony offered by Mr. Burnham.1
1
In its motion, Union Pacific moves the Court to strike Mr. Burnham’s cartoon animation.
On December 10, 2014, the Court entered an order granting Union Pacific’s separate motion to
strike the cartoon animation. See December 10, 2014 Order [docket no. 171]. In light of the Court’s
order, the Court will not address the cartoon animation in this order. Additionally, in its motion,
Federal Rule of Evidence 702 governs the admissibility of expert testimony based upon
scientific, technical, or other specialized knowledge. It 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
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 Pharm., Inc., 509 U.S. 579 (1993), the Supreme Court held that
Rule 702 requires the trial court to “ensure that any and all scientific testimony or evidence admitted
is not only relevant, but reliable.” 509 U.S. at 589. In Kumho Tire Co. v. Carmichael, 526 U.S. 137,
141 (1999), the Supreme Court concluded 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.” 526 U.S.
at 141. With respect to the all-important reliability determination, the Supreme Court further
concluded that “a trial court may consider one or more of the more specific factors that Daubert
mentioned when doing so will help determine that testimony’s reliability. But, as the Court stated
Union Pacific moves the Court to strike any opinion testimony by Mr. Burnham regarding failing
to sound the train horn in a staccato pattern. On December 18, 2014, the Court entered an order
granting Union Pacific’s Daubert motion regarding Charles Culver. Mr. Culver’s opinion was that
a series of short blasts from the train horn should have been used in this case. For the same reasons
set forth in the Court’s December 18, 2014 Order [docket no. 176], the Court finds that Mr.
Burnham should not be allowed to testify regarding failing to sound the train horn in a staccato
pattern.
2
in Daubert, the test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither
necessarily nor exclusively applies to all experts or in every case.” Id. (emphasis in original).
Several factors may be considered by the trial court in assessing the reliability of proposed
expert testimony. The “Daubert factors” that may be considered are: (1) whether the theory or
technique employed by the expert in formulating his expert opinion can be or has been tested; (2)
whether the theory or technique has been subjected to peer review and publication; (3) whether, with
respect to a particular technique, there is a high known or potential rate of error; (4) whether
standards control operation of the technique; and (5) whether the theory or technique is generally
accepted within the relevant professional community. Id. at 149-50 (quoting Daubert, 509 U.S. at
592-94). In Kumho Tire, the Court recognized that in some cases “the relevant reliability concerns
may focus upon personal knowledge or experience,” rather than scientific foundations. Id. at 150.
In such cases, the trial court may focus on alternative factors that are better-suited to the specific
type of expertise at issue. Id. at 150-52. “The objective of [the gatekeeping] requirement is to
ensure the reliability and relevancy of expert testimony. It is 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.” Id.
at 152. “[T]he trial judge [has] considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.” Id.
Further, when expert testimony is challenged under Daubert, the burden of proof regarding
admissibility rests with the party seeking to present the testimony. Truck Ins. Exch. v. Magnetek,
Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). “The plaintiff need not prove that the expert is
undisputably correct or that the expert’s theory is ‘generally accepted’ in the scientific community.
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Instead, the plaintiff must show that the method employed by the expert in reaching the conclusion
is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702’s
reliability requirements.” Id. (quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999)).
In its motion, Union Pacific asserts that Mr. Burnham lacks the proper expertise, training,
or specialized knowledge to offer his opinions. However, Union Pacific offers no further argument
as to Mr. Burnham’s qualifications other than this conclusory assertion. Having carefully reviewed
the parties’ submissions, the Court finds that Mr. Burnham clearly has the requisite knowledge,
experience, training, and education to offer his opinions in this case. Specifically, Mr. Burnham
spent thirty years as a traffic engineer in the Georgia Department of Transportation, including
sixteen years as State Traffic & Safety Director. While Director, one of Mr. Burnham’s significant
activities was to manage improvements at 7,200 public rail highway grade crossings in Georgia.
Mr. Burnham is also a substantial contributor to or co-author of a number of authorities relating to
railroad crossings. Further, Mr. Burnham has participated in the committee to address the problem
of safety at railroad crossings with the United States Department of Transportation Research Board.
Mr. Burnham also helped create Section 11-701 of the Model Vehicle Code, which is one of the
Oklahoma statutes relied upon in this case by Union Pacific. Finally, Mr. Burnham has worked as
a consultant in railroad accident cases since 1961 and has analyzed approximately 10,000 railroad
crossings.
Union Pacific further asserts that Mr. Burnham’s opinion that this accident occurred at an
ultra-hazardous crossing based upon several crossing deficiencies2 is contradicted by the record
2
In its supplement, Union Pacific contends that this opinion is now moot because plaintiff
has disavowed that she is bringing any negligent design claim. In her response, plaintiff states that
while she is not bringing any negligent design claim, she is asserting a claim for negligently failing
4
evidence and is not helpful to the jury. Having carefully reviewed the parties’ submissions, the
Court finds that Mr. Burnham’s opinions are not completely contradicted by the evidence in this
case and will help the jury to understand the evidence or to determine a fact in issue. Further, the
Court finds that Union Pacific’s objections to Mr. Burnham’s opinions go to the weight, and not the
admissibility, of the opinions and that during cross-examination, Union Pacific may thoroughly
question Mr. Burnham regarding all of the alleged deficiencies in his opinions and any contradictory
evidence.
Additionally, Union Pacific contends that Mr. Burnham improperly bases his opinions on
non-binding recommendations, guidelines, and non-existent Union Pacific policies. Specifically,
Union Pacific asserts that Mr. Burnham’s opinions are improperly based upon AREMA
recommendations, AASHTO guidelines, or Union Pacific’s supposed internal “policy” of cutting
vegetation 500 feet at all private railroad crossings. Having carefully reviewed the parties’
submissions, the Court finds that Union Pacific’s objections regarding the non-binding
recommendations and guidelines go to the weight, and not the admissibility, of Mr. Burnham’s
opinions and that during cross-examination, Union Pacific may thoroughly question Mr. Burnham
regarding all of the alleged deficiencies in relying on these recommendations and guidelines,
including that these recommendations and guidelines are non-binding. Regarding any opinions
based upon Union Pacific’s supposed internal policy of cutting vegetation, the Court finds that to
the extent there is proper evidence to support any supposed policy, Mr. Burnham may offer opinions
based upon the policy. However, the Court finds that Mr. Burnham may not rely upon the Hardy
to maintain the crossing, including negligently failing to inspect and correct deficiencies at the
crossing. In light of plaintiff’s negligent failure to maintain claim, the Court finds that Mr.
Burnham’s opinions are not moot.
5
Rome document in support of his opinions, as this Court has previously found that this document
is not relevant.
Accordingly, the Court DENIES Union Pacific’s Daubert Motion Regarding Archie
Burnham [docket no. 100].
IT IS SO ORDERED this 7th day of January, 2015.
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