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Lain v. BNSF Railway Co.

United States District Court, District of Kansas

November 14, 2014

Lee Lain, Plaintiff,
v.
BNSF Railway Company, Defendant.

MEMORANDUM & ORDER

John W. Lungstrum, United States District Judge.

Plaintiff Lee Lain filed this negligence action under the Federal Employers’ Liability Act against BNSF Railway Company, his employer, for injuries he sustained after he slipped and fell due to an “unnatural accumulation of ice” on a pedestrian pathway at the BNSF Technical Training Center on the campus of Johnson County Community College. This matter is presently before the court on BNSF’s motion to exclude the opinions of Frank Burg, a liability expert retained by plaintiff, under Federal Rules of Evidence 702-705 and the rule set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). As will be explained, the motion is granted in part and denied in part.

I. Governing Standards

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court instructed that district courts are to perform a “gatekeeping” role concerning the admission of expert testimony. See id. at 589–93; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–48 (1999). The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, 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 under 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. To determine that an expert’s opinions are admissible, this court must undertake a two-part analysis: first, the court must determine that the witness is qualified by “knowledge, skill, experience, training, or education” to render the opinions; and second, the court must determine whether the proposed testimony is “reliable and relevant, in that it will assist the trier of fact.” See Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013).

To qualify as an expert, the witness must possess such “knowledge, skill, experience, training, or education” in the particular field as to make it appear that his or her opinion would rest on a substantial foundation and would tend to aid the trier of fact in its search for the truth. See Life Wise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004). In determining whether the proffered testimony is reliable, the court assesses whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be properly applied to the facts in issue. See Daubert, 509 U.S. At 592–93. The Daubert Court identified testability, peer review and publication, the known or potential rate of error, and general acceptance among the factors relevant to assessing reliability. See id. at 592–94. In Kumho Tire, however, the Supreme Court emphasized that the Daubert factors are not a “definitive checklist or test” and that a court’s inquiry into reliability must be “tied to the facts of a particular case.” See Kumho Tire, 526 U.S. at 150. In some cases, “the relevant reliability concerns may focus upon personal knowledge or experience, ” rather than the Daubert factors and scientific foundations. See Id . The district court has “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” See Id . at 152.

Plaintiff has retained Frank Burg, a certified safety engineer, to testify in this case about accident prevention, the pertinent standard of care and whether defendant’s conduct fell below that standard of care. In its motion to exclude, defendant contends that Mr. Burg lacks sufficient facts, data and knowledge to provide reliable opinions and improperly assumes the truth of “facts” that are disputed; that Mr. Burg’s opinions are the product of an “experimental methodology” that is not reliable and is unreliably applied; that Mr. Burg improperly relies on safety standards that are irrelevant and inapplicable to the facts of this case; and that Mr. Burg’s testimony is not helpful to the jury. The court addresses each of these challenges in turn.[1]

II. Does Mr. Burg Lack Sufficient Facts or Data to Render his Opinions?

In its motion to exclude, defendant contends that Mr. Burg’s opinions are not reliable because Mr. Burg never visited the campus where the injury occurred; never spoke to any witnesses; never collected data or took field notes; and never performed any “measurements.” Defendant further asserts that Mr. Burg’s opinions are unreliable because those opinions are based on numerous erroneous factual assumptions-obtained only through plaintiff’s deposition-that are disputed by defendant’s evidence. Mr. Burg, for example, asserts that defendant plowed snow behind the dumpsters in the loading dock area; that plaintiff was never advised to use the east exit door to reach the designated smoking area; ...


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