Smithwick v. BNSF Ry. Co., No. CIV-18-160-G

447 F.Supp.3d 1239

Brandon SMITHWICK, Plaintiff,

v.BNSF RAILWAY COMPANY, Defendant.

No. CIV-18-160-G

United States District Court, W.D. Oklahoma.

Signed March 20, 2020

Patrick S. O'Brien, Law Offices of Patrick S. O'Brien, St. Louis, MO, Thomas M. Wright, Wright Stout & Wilburn PLLC, Muskogee, OK, for Plaintiff.

George R. Mullican, Matthew B. Covert, Michael P. Womack, Robert D. Hart, Mullican & Hart PC, Jamie A. Rogers, Gibbs Armstrong & Borochoff, Tulsa, OK, for Defendant.

ORDER

CHARLES B. GOODWIN, United States District Judge

Now before the Court are Defendant BNSF Railway Company's Motion for Summary Judgment (Doc. No. 42), Plaintiff Brandon Smithwick's Response (Doc. No. 44), and Defendant's Reply (Doc. No. 50). Also pending are the following Daubert¹ motions:

• Plaintiff's Motion to Exclude Defendant's Expert Foster Peterson (Doc. No. 39) with Defendant's Response (Doc. No. 46); and

• Plaintiff's Motion to Exclude Defendant's Expert Amber Stern, PhD, PE (Doc. No. 40) with Defendant's Response (Doc. No. 47).

All of the motions are fully briefed and at issue.

I. Background

On July 3, 2017, Plaintiff was employed by Defendant and working as a conductor on a fully loaded grain train in Marland, Oklahoma, headed by two locomotives. Compl. (Doc. No. 1) ¶¶ 1, 4. Plaintiff was standing on a step in the lead locomotive when the train went into an undesired emergency (or "UDE") brake application, causing the train to collide with the lead locomotive. Id. ¶ 4; Def.'s Mot. Summ. J. at 9-10, Nos. 11-12, 19; Pl.'s Resp. at 7. Plaintiff alleges that as a result of the incident, he "suffered injuries and/or aggravated a pre-existing condition to his right shoulder, neck, back and right knee," resulting in "bodily pain," "loss of enjoyment of life," "mental, psychological and emotional pain," and lost wages and earning capacity. Compl. ¶¶ 8-10, 14-16.

Plaintiff filed this lawsuit in February 2018, raising claims against Defendant of liability under: (1) the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51 et seq. ; and (2) the Federal Safety Appliance Act ("FSAA"), 49 U.S.C. §§ 20301 et seq.

II. Opinion Testimony

Because the Daubert motions cited above are pertinent to the Motion for Summary Judgment, the Court first addresses the admissibility of the relevant opinion testimony.

A. Federal Rule of Evidence 702

Rule 702 of the Federal Rules of Evidence governs the admissibility of opinion testimony at trial and 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 applying Rule 702, the Court therefore must first determine whether the challenged witness "is qualified ... by knowledge, skill, experience, training, or education" to state the opinion. Id. ; see Taber v. Allied Waste Sys., Inc. , 642 F. App'x 801, 806-07 (10th Cir. 2016) ; see also Fed. R. Evid. 104(a). If so, the Court "must then consider," in accordance with its "gatekeeping" function under Rule 702 and Daubert , "whether the expert's opinion is both relevant and reliable." Taber , 642 F. App'x at 807 (citing Daubert , 509 U.S. at 589, 113 S.Ct. 2786 ). The Court "has wide latitude in deciding whether to exclude expert testimony" pursuant to Rule 702 and Daubert . Schulenberg v. BNSF Ry. , 911 F.3d 1276, 1282 (10th Cir. 2018) (internal quotation marks omitted).

B. Defendant's Proposed Witness Foster Peterson

Defendant proposes to have Foster Peterson, an engineer who previously worked as a railroad official, render opinion testimony based on his expertise in train dynamics and train handling. See Peterson R. (Doc. No. 39-2) at 3; Def.'s Peterson Resp. (Doc. No. 46) at 1. As reflected in his expert report and deposition testimony, Mr. Peterson used what is known as the Train Operations and Energy Simulator ("TOES") program to simulate and analyze the train dynamics involved in the incident of July 3, 2017. See Peterson R. at 8-18; Peterson Dep. 18:1-20:18 (Doc. No. 39-1); Peterson Decl. ¶ 4 (Doc. No. 46-1). The TOES program was developed by the Transportation Technology Center, Inc., which is an organization that provides transportation research and testing services for the rail industry. Peterson Decl. ¶ 4. According to Mr. Peterson, "BNSF and other Class I railroads utilize[ ] TOES to perform longitudinal train dynamic stimulation analysis, including to determine the in-train coupler forces generated between locomotives and cars in moving trains." Id.

Mr. Peterson and his staff entered multiple items of data into the simulation, including: track information (grade and curvature data), train information (locomotive and railcar types, lengths, and gross weights), and the train handling commands. Peterson Dep. 22:15-23:1; Peterson R. at 11. Using TOES, Mr. Peterson calculated the peak acceleration range and the in-train forces applied to the lead locomotive where Plaintiff was standing. Peterson Decl. ¶¶ 5-8; Peterson R. at 17-18.

In Plaintiff's Motion to Exclude Peterson (Doc. No. 39), he does not dispute that Mr. Peterson is qualified to provide such testimony. Rather, citing the relevance and reliability requirements of Daubert , Plaintiff objects to several discrete aspects of Mr. Peterson's opinions. See id. at 5, 8-9.

1. Maximum Compressive Force

Mr. Peterson opined that, using the TOES program, he determined that the "in-train coupler force on the locomotive in which [Plaintiff] [was] riding" would have been approximately -304,000 pounds. Peterson Decl. ¶¶ 4-6; see also Peterson R. at 18. Plaintiff criticizes this opinion, arguing that Mr. Peterson "has no explanation as to how he came to the figure." Pl.'s Mot. to Exclude Peterson at 8. Both Mr. Peterson's Report and his deposition testimony, however, present a detailed account of his methodology, including the use of the TOES program, and an explanation of how he determined that "[t]he maximum forces predicted on the lead locomotive during the recoupling simulation were +22 kips draft and -304 kips buff." Peterson R. at 18; see also id. at 11, 15-18; Peterson Dep. 20:19-21:7. Plaintiff's Motion does not offer any specific challenge to this methodology.

Plaintiff relatedly asserts that, "[i]f one were to take the scenario of that mass times acceleration would give us the force of the impact as stated by Mr. Peterson in his deposition, 32 million pounds times 3 to 4 miles per hour certainly would not give you the number of 304,000 pounds." Pl.'s Mot. to Exclude Peterson at 8. Plaintiff does not explain these numbers, although there are references in the record to the relevant train (though not individual sections) weighing 16,000 tons, and Defendant's Response clarifies that Plaintiff's use of "3 to 4 miles per hour" is a reference to the "difference in velocity between the two sections of the train." Def.'s Peterson Resp. at 9. In any event, Mr. Peterson expressly testified that while force and acceleration are related by the equation F=ma, when two portions of a train make contact with each other, "not all of the mass of the train is applied to the object as force at the instant of the coupling."² Peterson Decl. ¶ 13. Mr. Peterson also explained that the difference in velocity between two objects "is not equivalent to acceleration," as "[a]cceleration is the change in velocity over the time that change occurs." Id. ¶ 12. Plaintiff offers no specific challenge to these explanations.

Although Plaintiff may believe that his equation and figures are the better calculator of force, he fails to show any lack of reliability or an insufficient factual foundation in Mr. Peterson's chosen calculation.

The Court is not "in a position to declare" whether Mr. Peterson's opinion "is, in fact, correct." Goebel v. Denver & Rio Grande W. R.R. , 346 F.3d 987, 994 (10th Cir. 2003). Plaintiff's dispute of the accuracy of Mr. Peterson's conclusion is a matter for cross-examination rather than for exclusion under Rule 702 and Daubert . See Daubert , 509 U.S. at 596, 113 S.Ct. 2786 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."); see also Alnahhas v. Robert Bosch Tool Corp. , No. CIV-13-178-D, 2018 WL 2293965, at *5 (W.D. Okla. May 18, 2018) (noting that "rejection of expert testimony is the exception rather than the rule").

2. Acceleration and the Occupants' Movements

Mr. Peterson noted Plaintiff's allegation that when the collision occurred, Plaintiff "had begun descending the steps" and "was severely thrown to the cab floor due to sudden movement of the lead locomotive." Peterson R. at 19. In his Report, Mr. Peterson calculated that the peak acceleration range upon the lead locomotive was 0.14 to 0.71g. Peterson R. at 18; Peterson Decl. ¶ 8. According to Mr. Peterson, such accelerations "are typical of and are routinely experienced on locomotives during freight train operation." Peterson R. at 18. Mr. Peterson further stated that, "in [his] direct experience," such accelerations "are not of a magnitude that would ... cause the types of movements alleged by [Plaintiff]." Id.

Plaintiff objects that this opinion is contradicted by testimony offered by Defendant's expert Dr. Amber Stern, who reportedly "admits that forces less than the ones measured by Mr. Peterson were sufficient to cause people to lose the[ir] balance and fall down in airport trams." Pl.'s Mot. to Exclude Peterson at 8.³ A lack of consistency with a second expert's opinion is not, in and of itself, a basis for exclusion...