Lessert v. BNSF Railway Company

Filing 184

ORDER granting in part and denying in part 112 Motion to Exclude. Signed by US Magistrate Judge Daneta Wollmann on 5/29/20. (Wollmann, Daneta)

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GERALD LESSERT, SPECIAL
ADMINISTRATOR OF THE ESTATE OF
RICHARD CLAYMORE LESSERT,
DECEASED; AND RICHARD
CLAYMORE LESSERT,
Plaintiffs,
vs.

5:17-CV-05030-JLV

ORDER REGARDING MOTION TO
EXCLUDE PLAINTIFF’S EXPERTS
(DOC. 112)

BNSF RAILWAY COMPANY, A
CORPORATION;
Defendant.

This is an action brought under the Federal Employers’ Liability Act, 45
U.S.C. §§ 51, et seq. Defendant BNSF Railway Co. filed a Motion to Exclude
Plaintiff’s Expert. (Doc. 112). In support of the motion, BNSF filed a brief in
support of the motion along with 14 exhibits (170 pages). (Docs. 113, 114).
Plaintiff filed a brief together with 9 exhibits (262 pages) in resistance to
Defendant’s motion. (Docs. 143, 144). BNSF submitted a reply brief in support
of their motion. (Doc. 146). United States District Court Judge Jeffrey L.
Viken, referred the case to this magistrate judge for the purpose of resolving
pretrial motions. (Doc. 121).

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BACKGROUND
Plaintiffs filed this action for injuries arising from the death of Richard
Lessert 1 who was struck and killed by a train while working as an employee for
Defendant. BNSF moves to strike five of Plaintiff’s expert witnesses: Joe Lydick
(maintenance of way rules, procedures, and operations), Brad Mathison
(computer modeling and animation), Charles Culver (transportation department
rules, procedures and operations), Mariusz Ziejewski (biomechanic), and Stan
Smith (economist).
DISCUSSION
A. Rule 702
The admissibility of expert opinions is governed by Fed. R. Evid. 702 which
states:
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.

All references herein to “Mr. Lessert” are referring to Richard Lessert, the decedent, not to be
confused with Gerald Lessert, the father and special administrator of the estate of Richard
Lessert.
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Fed. R. Evid. 702. Rule 702 requires a district court to act as a gatekeeper to
ensure that expert testimony both rests on a reliable foundation and is
relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
(1993). This gatekeeping function applies to all specialized knowledge. Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). “The trial judge's effort to
assure that the specialized testimony is reliable and relevant can help the jury
evaluate that foreign experience, whether the testimony reflects scientific,
technical, or other specialized knowledge.” Id. at 1174–75. District court have
“wide latitude in making its reliability and relevance determinations.” United
States v. Kehoe, 310 F.3d 579, 593 (8th Cir.2002).
As a preliminary matter, “[t]he proponent of the expert testimony must
prove its admissibility by a preponderance of the evidence.” Lauzon v. Senco
Products, Inc., 270 F.3d 681, 686 (8th Cir. 2001). “[D]oubts about whether an
expert’s testimony will be useful should be generally resolved in favor of
admissibility.” Sphere Drake Ins. PLC v. Trisko, 226 F.3d 951, 955 (8th Cir.
2000).
1. Relevance
a. Liability experts – Joe Lydick, Charles Culver, Brad Mathison
Plaintiff indicates that Mr. Lydick and Mr. Culver intend to testify
regarding BNSF’s legal duties for the safety of its employees. (Doc. 143 at p. 4).
Mr. Lydick and Mr. Culver’s testimony presumably will opine on the meaning
and applicability of federal regulations. (Doc. 143 at p. 6; Doc. 146 at p. 1).
Similarly, Mr. Mathison is an accident reconstruction expert whose testimony
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“establishes what the striking train did in space and time . . .” (Doc. 143 at p.
10).
These matters fall squarely within the issue of negligence. Subsequent to
BNSF filing this motion to exclude, the court issued its Report and
Recommendation setting forth its belief that the district court should issue
partial summary judgment in favor of Plaintiff on the issue of negligence. (Doc.
179). The district court has given notice to the parties of its intention to
address the issue of causation. The testimony of Mr. Lydick, Mr. Culver, and
Mr. Mathison pertains solely to the issue of negligence. If the district court
adopts this court’s recommendation finding BNSF negligent, Plaintiff need not
make a further showing to the jury regarding negligence and therefore the
testimony of Mr. Lydick, Mr. Culver, and Mr. Mathison has no relevance to the
case. Therefore, the court grants the motion to exclude the testimony of Mr.
Lydick, Mr. Culver, and Mr. Mathison. In the event the district court rejects
the Report and Recommendation, Plaintiff may file a motion to reconsider the
court’s ruling on this motion.
b. Biomechanical expert – Mariusz Ziejewski
BNSF contends that Dr. Ziejewski intends to testify that Mr. Lessert
survived for a period of time after his injury. (Doc. 113 p. 14). BNSF also
contends that Dr. Ziejewksi will testify as to the perception-reaction time of Mr.
Lessert’s crew. Id. at p. 20. Plaintiff argues that Dr. Ziejewski “intends to
testify only from the biomechanical perspective as to what happened to Mr.
Lessert’s body was relevant to the cause of death.” (Doc. 143 at p. 10). In his
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expert report, Dr. Ziejewski’s concludes, “Mr. Lessert had no opportunity to
protect himself due to including, but not limited to, his attention on his
designated job and noisy environment. That is, Mr. Lessert had to rely
completely on the warning from the lookout.” (Doc. 114-7 at p. 7).
Regardless of whether Dr. Ziejewski’s testimony pertains to
negligence/causation or to the survival action, the court concludes that neither
is a relevant consideration for the jury. Dr. Ziejewski’s testimony regarding
“what happened to Lessert’s body” is only relevant to Plaintiff’s survival action.
Subsequent to BNSF filing this motion to exclude, the court issued a Report
and Recommendation setting forth its belief that the district court should issue
partial summary judgment in favor of BNSF on Mr. Lessert’s survival action.
(Doc. 180). This court also issued a Report and Recommendation setting forth
its belief that the district court should issue partial summary judgment in favor
of Plaintiff on the issue of negligence. (Doc. 179). The district court has given
notice to the parties of its intention to address the issue of causation. If the
district court adopts this court’s recommendations regarding the survival
action and the issue of negligence by BNSF, the testimony Dr. Ziejewski has no
relevance to the case. Therefore, the court grants the motion to exclude the
testimony of Dr. Ziejewski. In the event the district court rejects either Report
and Recommendation, Plaintiff may file a motion to reconsider the court’s
ruling on this motion.

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c. Economist – Stan Smith
Dr. Stan Smith has been designated by Plaintiff to serve as an expert
regarding Plaintiff’s damages. Regarding relevance, BNSF does not appear to
argue that Dr. Smith’s calculations on the issues of damages suffered by his
surviving widow and children are irrelevant. (Doc. 113 at pp. 25-31). Instead,
BNSF argues that Dr. Smith’s calculations regarding Mr. Lessert’s non-adopted
stepdaughter, Trinity Richards, are irrelevant because she cannot recover
under the FELA. Id. at 30-31.
The court finds that Dr. Smith’s testimony regarding Mr. Lessert’s
surviving widow and children is relevant. His report sets forth the
methodology, data, and analysis he used to calculate damages, which remains
a material issue for the trier of fact. See Ventura v. Titan Sports, Inc., 65 F.3d
725, 733 (8th Cir.1995)(expert's opinion admissible where it made a material
fact more likely than in the absence of that testimony).
However, the court finds testimony and evidence from Dr. Smith
regarding Mr. Lessert’s non-adopted stepdaughter is not relevant. Subsequent
to BNSF filing this motion to exclude, the court issues it Report and
Recommendation setting forth its belief that the district court should issue
partial summary judgment in favor of BNSF on Plaintiff’s claim for losses
sustained by Mr. Lessert’s unadopted stepdaughter. (Doc. 180). If the district
court adopts this court’s recommendations regarding the damages sustained
by Mr. Lessert’s unadopted stepdaughter, the testimony Dr. Smith pertaining
to these calculations has no relevance to the case. Therefore, the court grants
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the motion to exclude the testimony of Dr. Smith as it pertains to Trinity
Richards. In the event the district court rejects this court’s Report and
Recommendation on this issue, Plaintiff may file a motion to reconsider the
court’s ruling.
2. Reliability
The court focuses its reliability analysis on Dr. Stan Smith as he is the
only expert which has survived the relevancy inquiry. Daubert lists four factors
a court can consider to evaluate the admissibility of expert testimony for
reliability purposes: “whether the testimony can be or has been tested, ...
whether the theory or technique has been subjected to peer review and
publication, ... the known or potential rate of error,” and whether the relevant
scientific community has generally accepted the theory or technique. Daubert,
509 U.S. at 593–94. These factors, however, are meant to be helpful rather
than a “definitive checklist or test.” Id. at 593. Trial judges have “broad
latitude” in determining whether the specific factors reasonably measure
reliability. Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1082 (8th Cir.1999).
Indeed, “the gatekeeping inquiry must be tied to the facts of a particular case.”
Kumho Tire, 119 S.Ct. at 1175.
The focus of the inquiry remains on the principles and methodology
rather than the expert's conclusions. Daubert, 113 S.Ct. at 2797. Experts can
express opinions “so long as there are sufficient facts already in evidence or
disclosed by the witness as a result of his or her investigation to take such

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expert opinion testimony out of the realm of guesswork and speculation.”
Hurst v. United States, 882 F.2d 306, 311 (8th Cir.1989).
BNSF argues that Dr. Smith intends to offer a variety of opinions that are
not based on scientific, technical, or other specialized knowledge that is useful.
(Doc. 113 at p. 25). BNSF argues Dr. Smith’s computation of damages is
flawed because he uses his own methodology for calculating hedonic damages;
BNSF asserts this methodology has been “squarely rejected by numerous
courts because it fails to meet the reliability standards articulated by the
Eighth Circuit and under the Daubert doctrine.” Id. at 26. BNSF also argues
that other courts have excluded Dr. Smith’s testimony because of his failure to
use data to connect his methodology to the facts of this case. Id. at 29.
Plaintiff responds by arguing that BNSF’s challenge to Dr. Smith is too
broad and incomprehensible to respond. Plaintiff directs the court to Exhibit I
of its response, which is Dr. Smith’s report.
In this case, Dr. Smith satisfies the requirements of Rule 702. He has
particular knowledge of economics, forensic economics, and damage
calculations. His educational background evidences his expertise. (Doc. 144-9).
He received a bachelor’s degree from Cornell University, and master’s degree
and doctorate in economics from the University of Chicago. Dr. Smith’s work
experience further demonstrates his knowledge in the field of economics. Dr.
Smith is a member of various economic associations and was on the Board of
Ethics for the peer-reviewed journal, the Journal of Forensic Economics, for
over a decade. Dr. Smith has published scholarly articles in this journal. Dr.
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Smith wrote the first textbook on Forensic Economic Damages used in
university courses in various states. Dr. Smith served as an adjunct professor
creating and teaching Forensic Economics nationwide. Dr. Smith has testified
in hundreds of cases, and many parties have relied on his expert reports and
analyses. Contained within his report is a list of over 600 cases wherein Dr.
Smith has provided testimony between 2014-2018. (Doc. 144-9 at pp. 7-61).
Dr. Smith’s report calculates Plaintiff’s losses into three categories: 1) the
loss of wages and employee benefits; 2) the loss of pension benefits; and 3) the
loss of services sustained by Mr. Lessert’s surviving family.
BNSF takes issue with Dr. Smith’s assumption that Mr. Lessert would
have retired at age 67 and his assumption that Mr. Lessert provided 110 hours
per week of household services calculated at an hourly rate of $16.30 per hour.
Id. at 26, 28. BNSF takes issue that Dr. Smith provided no explanation for
these assumptions and therefore argues they are unreliable. Id. at 28; See also
Smith report (Doc. 144-9 at pp 5-12).
In Dr. Smith’s deposition, he testified that he used age 67 as a retirement
age because according to Mr. Lessert’s wife, Mr. Lessert had no plans to retire.
Regarding Dr. Smith’s assumptions for household services, his report contains
a narrative of several pages detailing Mr. Lessert’s household services
according to his family. When BNSF pressed Dr. Smith regarding his
assumption that Mr. Lessert would provide household services at full capacity
until age 78.6, Dr. Smith testified that a trier of fact could make modifications
(such as removing years or assigning a percentage of capacity) to his year by
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year tables. BNSF takes issue with Dr. Smith’s testimony that his calculations
are a tool, aid, or a guide for a trier of fact.
Attacks on the foundation for an expert's opinion as well as the expert's
conclusions, go to the weight rather than the admissibility of the expert's
testimony.” Sphere Drake Ins. PLC v. Trisko, 226 F.3d 951, 955 (8th
Cir.2000). A challenge to the factual basis of Dr. Smith’s testimony relates to
its credibility, not its admissibility. Ray v. Wal–Mart Stores, Inc., 120 F.3d 882,
885 (8th Cir.1997). “Only if an expert's opinion is so fundamentally
unsupported that it can offer no assistance to the jury must such testimony be
excluded.” Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 974 (8th
Cir.1995).
Dr. Smith’s expertise, deriving from his work experience, his education,
his skill, and knowledge, will assist the court in calculating damages in this
case. Accordingly, Dr. Smith is qualified to give an expert opinion under Rule
702, as it pertains to the surviving spouse and children of Mr. Lessert. The
court denies the motion to exclude Dr. Smith’s testimony on this topic of
damages.
CONCLUSION
For the foregoing reasons, the court grants the motion to exclude as to
Joe Lydick, Brad Mathison, Charles Culver and Mariusz Ziejewski. The court
grants to the motion in part and denies the motion in part as to Stan Smith.
Dr. Smith’s testimony is excluded only as to Trinity Richards.

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NOTICE TO PARTIES
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED this 29th day of May, 2020.
BY THE COURT:

DANETA WOLLMANN
United States Magistrate Judge

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