Belisle v. BNSF Ry. Co.

697 F. Supp.2d 1233

Justin R. BELISLE, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant.

Case No. 08-2087-EFM.

United States District Court, D. Kansas.

March 9, 2010.

Charles W. Gordon, Jr., Christopher H. Leach, Hubbell, Peak, O'Neal, Napier & Leach, Kansas City, MO, for Plaintiff.

Angela L. Angotti, Leo L. Logan, William P. Coates, Jr., Coates & Logan, LLC, Overland Park, KS, James E. Roberts, BNSF Railway Company, Fort Worth, TX, for Defendant.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

On March 3, 2007, Belisle was employed by BNSF as a brakeman for a train that was preparing to depart its Newton, Kansas yard. As part of his duties, Belisle was assigned the task of preparing the end of the train for departure, which included, among other tasks, the installation, arming, and testing of a turbine powered end-of-train device ("ETD"), which attaches to the last car on the train. The train on which Belisle was working was parked on one of two east-west main track lines located on the north side of BNSF's Newton yard ("Main 2"). The other main track line ("Main 1") was located north of Main 2. While working on or near the train on Main 2, a train approached on Main 1, passing the train on Main 2 at approximately 50 mph, striking Belisle as it passed.¹ As a result, Belisle suffered extensive injuries.

Belisle brought this action against BNSF pursuant to the Federal Employer's Liability Act, ("FELA"),² claiming that BNSF negligently failed in a number of ways to furnish and provide him with a reasonably safe place to work, reasonably safe methods for work, reasonably safe conditions for work, and reasonably safe appliances for work. Now before the Court are: (1) Plaintiff's Motion to Exclude the Opinion Testimony of John Michael and John Parmalee (Doc. 262); (2) Plaintiff's Motion to Exclude Marc Sanders, Ph.D. (Doc. 266); and (3) Plaintiff's Motion to Exclude Richard VanWagner and Randy Valencia (Doc. 268). Also before the Court are Defendant's Second Motion in Limine (to exclude the testimony of Plaintiff's experts Mariusz Ziejewski and Paul Bodnar) (Doc. 144), and Defendant's Motion to Bifurcate (Doc. 197). We will address each in turn.

I. STANDARD

Rule 701 of the Federal Rules of Evidence governs the admissibility of lay witness opinions. Under Rule 701, opinion testimony of lay witnesses is permissible if the opinions are (1) rationally based on the perception of the witness; (2) helpful to the determination of a fact in issue; and (3) not based on scientific, technical, or specialized knowledge.³ Opinions based on scientific, technical, or specialized knowledge are governed by Rule 702. Rule 702 provides that a witness who is qualified by knowledge, skill, experience, training, or education (called an "expert witness") may testify in the form of opinion or otherwise as to scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue, "if, (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."⁴ A district court has broad discretion in deciding whether to admit expert testimony.⁵

The proponent of expert testimony must show "a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation."⁶ To determine whether an expert opinion is admissible, the Court performs a two-step analysis. First, the Court must determine "if the expert's proffered testimony ... has `a reliable basis in the knowledge and experience of his discipline.'"⁷ The Court must then inquire into whether the proposed testimony is sufficiently "relevant to the task at hand."⁸ An expert opinion "must be based on facts which enable him to express a reasonably accurate conclusion as opposed to conjecture or speculation ... absolute certainty is not required."⁹

The plaintiff need not prove that the expert is undisputably correct or that the expert's theory is "generally accepted" in the scientific community. 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.¹⁰

Daubert sets forth a non-exhaustive list of four factors that the trial court may consider when conducting its inquiry under Rule 702:(1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community.¹¹ These factors may or may not be pertinent, depending on the nature of a particular issue, the expert's particular expertise, and the subject of the expert's testimony; however, the Court may consider these factors where they are a reasonable measure of reliability, which is a consideration the Court has broad latitude to determine.¹² It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert.¹³ The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated.¹⁴ Here, neither party has indicated that such a hearing is necessary, and after carefully reviewing the motions and exhibits, the Court believes a hearing is not required in all cases to render our decision.¹⁵

II. ANALYSIS

1. Plaintiff's Motion to Exclude the Opinion Testimony of John Michael and John Parmalee

Plaintiff moves to exclude the testimony of John Michael, an individual that Defendant has identified in its Fed.R.Civ.P. 26(a) disclosures as a fact witness. Plaintiff claims that Defendant identified Michael to provide testimony not based on any first hand knowledge of Plaintiff or his treatment, but rather, intends to offer testimony on the availability of prosthetic devices after reviewing Plaintiff's medical records. Plaintiff contends that Michael's proposed testimony relates to specialized knowledge in the field of prosthetics, and because he was not properly identified and disclosed as an expert, Plaintiff cancelled Michael's scheduled deposition.¹⁶ Plaintiff argues that because Defendant intends to have Michael testify on the subject of prosthetic devices and not on any facts at issue relating to this incident or to Plaintiff that are based on his first-hand knowledge, he would be providing expert opinion testimony governed by Rule 702, and subject to the requirements of that rule including proper, advance disclosure of expert testimony.

Plaintiff also moves to exclude the testimony of John Parmalee, whom Defendant has identified in its Rule 26 disclosures as a fact witness testifying with regard to life care analysis and annuities. Plaintiff essentially makes the same arguments as with Michael. Plaintiff argues that Parmalee attended the mediation process in this case on behalf of Defendant as its structured settlement expert, and asserts that he has no first hand information about this case. Plaintiff contends that, on the basis of Defendant's Rule 26 disclosure, Parmalee's testimony will concern life care analysis and annuities, which clearly indicates Defendant's intend to illicit opinions subject to Rule 702. Because Parmalee has not been identified as an expert, Plaintiff claims his opinion testimony should be excluded.

Defendant contends that Plaintiff's motion to exclude Michael and Parmalee is premature because Plaintiff failed to depose either individual and because they have not been identified as expert witnesses. Defendant suggests that because Plaintiff has no idea what either may say, he is in effect raising an evidentiary objection at this point based only on speculation. Defendant represents that Michael nor Parmalee "will not be offering `opinion' testimony subject to Rules 701 or 702." But, at the same time, Defendant seems to assert that it just might do that at trial, claiming that it is aware of the requirements of Rules 701 and 702, and "if, at trial, any `opinions,' expert or otherwise, are offered, plaintiff can voice a timely and specific objection at the proper time."¹⁷ Defendant claims that because Plaintiff has the ability to object at trial, barring Michael's or Parmalee's testimony would be inappropriate.

Defendant's Rule 26 disclosures indicate that Michael's testimony will focus on prosthetic devices. Notwithstanding Plaintiff's assertions that Michael has no factual knowledge of Plaintiff or his treatment, and to which Plaintiff claims Defendant agrees, Defendant maintains that Michael is a fact witness whose testimony concerning prosthetics will not come within the purview of Rule 702. The Court, however, is not convinced that testimony related to the prosthetics available for this Plaintiff's use, which testimony would be based on Michael's review of Plaintiff's medical records, can be based on anything but Michael's specialized knowledge of the particular prosthetic devices. Thus, such testimony would be subject to Rule 702. Because Defendant has failed to identify Michael as an expert witness, such testimony will not be permitted.

To the extent that Michael would be able to provide relevant testimony concerning prosthetics within this limitation (i.e., available prosthetic devices not based on a review of Plaintiff's medical records), and to the extent that such testimony would be relevant under Rule 402,¹⁸ is yet to be determined. Because neither party has identified specific testimony that Defendant intends to illicit from Michael at trial, we are unable to make any further determination with regard to the relevancy of his testimony.¹⁹ Therefore, we are not inclined to preclude Michael's testimony entirely at this time; rather, we will address any relevancy arguments during this case's in...