911 F.3d 1276
10th Cir.2018Background
- On Jan. 11, 2014, BNSF locomotive bottomed out on a track segment with an internal slow order (40 mph); train was traveling ~38 mph and engineer Terry Schulenberg was injured.
- Inspector Lawrence Wallace measured a 1 5/8-inch deviation in a 62-foot chord after the incident; BNSF later restored the temporary speed to 40 mph after inspection.
- Schulenberg sued under FELA, advancing a single-event negligence per se theory that the track violated 49 C.F.R. § 213.63 (max deviation) because Wallace’s static measurement did not account for deflection under load (required by § 213.13).
- Plaintiff’s expert (Alan Blackwell) produced a report and post-report addendum opining the track violated the regulation; the district court excluded the expert under Rule 702/Daubert for lack of reliable methodology.
- The district court granted summary judgment for BNSF, finding no admissible evidence from which a jury could reasonably infer the under-load deviation exceeded the 2 1/4-inch Class 3 limit without impermissible speculation.
- Tenth Circuit affirmed: exclusion of expert testimony was not an abuse of discretion; summary judgment proper because plaintiff lacked proof that deflection under load exceeded 5/8 inch (to reach 2 1/4 inches).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony under Rule 702 | Blackwell should be admitted based on experience and application of federal/industry standards | Blackwell's opinions lacked a reliable, articulated methodology and relied on ipse dixit | Court: Exclusion affirmed — district court did not abuse discretion because report failed to show reliable reasoning/methods |
| Sufficiency of evidence for negligence per se (FELA) — whether track violated § 213.63 | Wallace’s 1 5/8" static measurement likely omitted under-load deflection; severity of bottoming out supports inference that under-load deviation exceeded 2 1/4" | Measurement and inspection records indicate compliance; plaintiff’s inference about extra deflection is speculative and lacks objective proof | Court: Summary judgment affirmed — plaintiff did not produce admissible evidence to let a jury reasonably infer >2 1/4" deviation without speculation |
| Whether general safety/regulatory testimony by expert should have been admitted | Even if specific opinions excluded, Blackwell could have testified generally about inspections and measurement methods | Argument not preserved below; additionally, admitting such general testimony would not change result | Court: Argument waived; even if error, harmless because plaintiff still lacks evidence to defeat summary judgment |
| Standard of inference under FELA (causation/role of jury) | FELA’s relaxed causation standard allows common-sense inferences to go to the jury | Where technical issues exceed common experience, expert proof is required; speculation insufficient | Court: Agrees FELA is more permissive but still requires evidentiary support; here inference would be speculative, so plaintiff fails |
Key Cases Cited
- CSX Transp., Inc. v. McBride, 564 U.S. 685 (Sup. Ct.) (FELA allows recovery based on statutory/regulatory violations; relaxed causation standard)
- Gen. Elec. Co. v. Joiner, 522 U.S. 136 (Sup. Ct.) (courts may exclude expert opinions with too great an analytical gap from data)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Sup. Ct.) (Daubert gatekeeping applies to all expert testimony; district court has wide latitude)
- United States v. Nacchio, 555 F.3d 1234 (10th Cir.) (two-step Rule 702 inquiry: qualifications and reliability of methodology)
- Metcalfe v. Atchison, T. & S. F. Ry. Co., 491 F.2d 892 (10th Cir.) (FELA standard: jury issues unless complete absence of probative facts)
- Felkins v. City of Lakewood, 774 F.3d 647 (10th Cir.) (summary judgment burden and nonmovant’s obligation to produce admissible evidence)