911 F.3d 1276
10th Cir.2018Background
- On Jan. 11, 2014, BNSF engineer Terry Schulenberg was injured when his locomotive "bottomed out" on a stretch of track; he and the conductor described the event as unusually severe.
- The track segment was classed as FRA Class 5 but an internal slow order downgraded allowable speed to 40 mph (requiring compliance with Class 3 standards); the train was traveling ~38 mph.
- BNSF inspector Lawrence Wallace later measured a static deviation of 1 5/8 inches in a 62-foot chord; BNSF argues this complied with applicable standards after accounting procedures.
- Schulenberg sued under FELA alleging negligence per se based on violation of FRA track-profile regulation (49 C.F.R. § 213.63), claiming Wallace’s measurement did not account for deflection under load and thus total deviation exceeded the Class 3 limit (2 1/4 inches).
- The district court excluded plaintiff’s expert (Alan Blackwell) for lack of reliable methodology and granted summary judgment to BNSF; the Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony under Rule 702 | Blackwell should be admitted based on his experience and interpretations of standards and depositions | Blackwell’s report lacks an identifiable, reliable methodology and relies on ipse dixit and untied standards | Exclusion affirmed: district court did not abuse discretion; report lacks reliable methodology |
| Whether general expert testimony about standards should be admitted after excluding specific opinions | General testimony would help jury understand inspections and measurements | Argument was not preserved below; even if admitted, it would be harmless here | Not preserved; any error would be harmless because such testimony would not change summary judgment outcome |
| Whether Wallace’s 1 5/8" measurement (assumed not to include load deflection) creates a triable negligence-per-se claim | The severity of the bottoming out plus alleged failure to measure under load permits inference that loaded deviation exceeded 2 1/4" | Even assuming no load adjustment, plaintiff lacks evidence quantifying additional deflection beyond 5/8"; inference would be speculative | Summary judgment affirmed: plaintiff’s inference that loaded deflection exceeded 5/8" is speculative and insufficient to defeat summary judgment |
| Application of FELA’s relaxed causation standard | FELA permits broad inferences—jury should decide given testimony about severity | Broader inferences still require probative facts; expert proof needed for technical issues beyond common experience | FELA’s relaxed standard does not excuse speculation; expert evidence required for technical causation, so plaintiff fails to meet burden |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (gatekeeping obligation to ensure expert reliability)
- Gen. Elec. Co. v. Joiner, 522 U.S. 136 (courts may exclude opinion with an analytical gap from data to conclusion)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert standards apply to all expert testimony)
- CSX Transp., Inc. v. McBride, 564 U.S. 685 (FELA permits negligence-per-se claims based on statutory/regulatory violations)
- Lavender v. Kurn, 327 U.S. 645 (FELA jury-bias/standard on submitting cases to jury)
- Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29 (speculation cannot substitute for probative facts)
- Metcalfe v. Atchison, T. & S. F. Ry. Co., 491 F.2d 892 (10th Cir.) (FELA standard for sufficiency of evidence)
- Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500 (FELA causation: employer negligence need only play any part)
- Nacchio (United States v. Nacchio), 555 F.3d 1234 (10th Cir.) (two-step Rule 702 analysis by qualification then methodology)